Recently there have been a number of legislative moves or proposals attempting to deal with issues around the area of “hate speech”. The term of course is problematic- we will try to unpack it shortly. But the context, in Australia at least, is the shocking rise in the number of anti-semitic slogans and actual violence being seen in the last few months. Insults have been daubed on buildings and cars, fires lit at buildings associated with the Jewish community. And more recently, we have the shocking spectacle of two nurses from Bankstown Hospital saying on a video which has gone all over the world, that they would either like to kill their Israeli patients, or have already done so!
Part of the response of governments, at the Federal and State level, has been to either enact or propose laws punishing “hate speech”. The term itself is ambiguous. Does it mean speech “motivated” by hate? Or speech expressing hate? Or speech encouraging others to hate? I think we can all agree that, at one end of a spectrum, speech urging commission of violence against others should be unlawful. But what about expressing disagreement with moral choices made about sexual activity? Such speech might not be motivated by hate, but by concern for the bad effects of the behaviour, including contravening of divine law. Yet it might be perceived to be “hateful” by some who hear it.
It is regularly asserted that religiously based violence is somehow connected to speech insulting people on the basis of their religion. Yet some scholars note that there is little evidence produced that this is actually the case- that there is in truth no clear causal connection between speech of this sort and the issuing of threats or perpetration of violence.
Still, let’s concede that such is possible. It may be that regular assertions about how terrible people from a certain religious background are, will “normalise” the idea that threats and violence are appropriate responses. But will laws against such speech actually reduce the threats and violence? Or will they simply result in the speech being hidden from the community before it erupts in the actual acts?
The other problem with hate speech laws, of course, is that there is a serious danger that punishing speech on religious topics will unduly impair free speech on such topics generally. In the rest of this post I want to mention three recent Australian legislative initiatives on “hate speech” and note their possible impact on religious freedom. One is a new provision of Federal law which has already commenced. Second, I will be noting some changes that have been enacted and may commence soon under NSW law. Finally, I will briefly note some concerning legislation currently before the Victorian Parliament.
Before I do so, though, let me be very clear. The right to religious freedom cannot include the right to advocate for physical violence against other members of the community, nor of course a right to actual commit such violence or issue threats of such violence. Note that I have added the word “physical” here to be clear about the sort of “violence” I am referring to. The word “violence” should not be extended in metaphorical directions to refer to “criticising someone’s moral choices” or “upsetting someone”. These matters are not appropriately dealt with by the law. But no community can tolerate physical violence or threats against other members of the community justified by religious beliefs. As we will see, some recent laws are generally in the appropriate area of preventing actual violence; others are more problematic.
Law and Religion Australia 