We’re now at the stage in the public debate where politicians are condemning the exercise of ‘free speech’ by Muslim protesters which condemned the exercise of ‘free speech’ by some shady figure who made a video insulting Islam. It’s enough to make you dizzy. No doubt we shall soon see Bernard Keane write an ever so urbane article condemning the politicians who condemned the protesters who condemned the shady figure who made the video. That’s what our public debate is like: send in more trains.
We can — and should — try to grapple with the complexities of the discussion because it reveals a lot about our intuitions regarding freedom of speech and violence. Public discussions tend to adopt a ‘Boo – Hooray!’ model. Tax? Boo! Hospitals? Hooray! Supertrawlers? Boo/Hooray!
Freedom of speech? Hooray! Violence? Boo!
The problem with the model is that it stops us from questioning the assumptions behind our responses. When we don’t question those assumptions, it’s difficult to have any sort of meaningful conversation: unless people share the same assumptions, you might as well be talking a different language.
I was in a discussion about the riots which suffered this exact problem. I am not a fan of the ‘freedom of speech’ (I think it’s an inglorious shield for ratbags). Once a nation has reached a certain level of development, I think the ‘freedom of speech’ right should be seriously curtailed in favour of inclusiveness. This is because my intuitions about violence do not stop at mere physical violence, which is what most people get worked up about, but extend through to social kinds of violence: hate speech, insult, and ridicule (when they reach a particular threshold). If we’re going to be serious about being a society founded on consent, then we have to start thinking about whether people consent to us marginalising and humiliating them.
Of course, if you’re a cowboy of the electronic frontier, that’s going to sound unintelligible: violence is a physical act, nobody should care about hurt feelings, sticks and stones cause broken bones. Harden up! Here’s a cup of concrete. To me, this is the same kind of reasoning which fuels the ‘Mental illness isn’t really real like a physical illness’ prejudice. When somebody harks on about the freedom of speech and how important it is, I can see nothing but adolescent whining. Just as they can’t understand my intuitions, I struggle to understand their assertions.
So let’s start right back at the start. There is a major ground rule to discussing these sorts of questions: charity. We should assume that people are, on the whole, intelligent, reasonable, and don’t do things for ludicrous reasons. People don’t go a rampages because of videos, cartoons, or other frivolities. The focus on these aspects of the story makes it easy to trivialise the viewpoints of people with whom we disagree.
This charity gives us a derived position: if we’re being charitable and consider people capable of being intelligent, reasonable, and serious, we have to hold them to the highest possible moral standards. We can’t trivialise people’s positions with special pleading.
Already these two points shift us away from talking about the video (which is a sideshow distraction in the conversation, although I’ll discuss part of it in the bottom section) and force us to discuss why they would riot and whether their violent reaction is justifiable.
Why they would riot is a massive topic, mired in questions about whether countries outside of the Anglosphere really have the same social power as the rest of the world. To me, this riot and reaction seems like the expression of an exhausted and frustrated people cynically egged on by a few influential shit-stirrers.
But is there anything inherently wrong about violent reactions?
Let’s use a film example. In A Time to Kill, Samuel L Jackson’s daughter is raped and killed by two white guys. He believes that the justice system is racist and that he would be denied access to a just outcome. Being unable to avail himself of legal remedies, he decides to kill the guys who killed his daughter.
The film was criticised for encouraging the audience to empathise with vigilantism. While we can understand that SLJ’s actions might have been unlawful or illegal, it becomes less clear cut that his actions were immoral, unless you were taking an absolutist stand against violence.
Let’s try a real world example. Feeling that they were denied access to legal remedies, asylum seekers detained on Christmas Island rioted and set fire to the place. Writing in ABC’s The Drum, Greg Barnes wrote:
It is bad enough that such people have their liberty curtailed by being locked up for long periods, but it is even more egregious that they can be set upon with rubber bullets, water canons or tear gas.
The message from Barnes and others was that it wasn’t wrong of the asylum seekers to riot and destroy property: it was the fault of the system. The riot was justifiable.
The two examples frame the conversation not in terms of ‘Is violence absolutely wrong?’ but in terms of ‘Is violence a justified response to a particular situation?’ Sure, the absolutist is always going to say no, but their reasons will need to keep shifting in order to keep up. In the first answer, they would need to argue that SLJ just needed to endure the injustice of having his daughter raped and murdered. If the legal system couldn’t help him, then he was out of options. In the second answer, they would need to argue that the asylum seekers should have found other avenues to complain about their situation, regardless of their possibility of success.
But another, moderate point is coming across: violence is okay if other remedies are not available. If we’re okay with that idea, we can apply it to the Muslim rioters case.
We’ve already said that this wasn’t about the video. We are assuming that people have good reasons to engage in unnaturally extreme acts. So the riot is less about the video and more about the perception that Anglophone society is openly hostile to Islam. What expression of frustration and anger is available to a large number of people with limited ability to engage in a reasonable discussion about their concerns?
I don’t see any other avenues for the expression of their rage. Why should they have to ignore their anger when they feel targeted by the most powerful nations on Earth? If I were in a position where my cultural values were marginalised and ridiculed (which, because I’m white and right wing, will never, ever happen), I would get pissed off and join a demonstration protesting against it.
We could have started from a different perspective and looked at the reasons why people are so ferociously anti-protest, but I find that avenue a bit limited. I run straight into the problem of defining violence in a way which everybody agrees. If we take the hardline, anti-violence streak, we would condemn the video which started it and argue that authorities should prosecute whoever is behind it. Weirdly enough, that’s the message from the protesters as well…
If I adopt the definitions of my interlocutors (restricting it to physical violence alone… including against property?), then I end up in a world of special pleading. Why don’t we see violent responses as valid ones? Because violence is bad. Why is violence bad? Because it is. Why is it worse than marginalising a group of people to the extent that they don’t feel they can participate equally and fully in society? Because violence is bad.
The motives behind invalidating violence as a response seems to be because it makes us uncomfortable in our prosaic little worlds where we don’t actually care about all that much. Nobody gets mad. When life hands us lemons, we don’t get our engineers to find a way to make an exploding lemon. So when a group of people passionately consider something important to them, I am in a safe position to attack that thing. There is literally nothing that that group could do to me which would make me as upset, embarrassed, frustrated, and victimised as I could make them. The only response they’ve got is one which threatens me physically comparably to how I threatened them socially.
From my perspective, that’s what the ‘pacifist’ response — the criticism of protesting, the damnation of rioting — has been all about. It’s reinforcing the privileged view that, if anybody else in the world wants to compete with us, they have to do it on our terms and in our way. If they don’t respond in a way which makes us feel safe and non-threatened, their response is illegitimate and should be ridiculed.
Maybe I’m incorrect when I say there’s no way for them to compete. There might be one way they could compete: nothing upsets a group of white people more than the spectre of violent dark-skinned people. The sheer hypocrisy of people telling the Muslim world to ‘get over’ the video who then got bent all out of shape at a few ridiculous signs at the rally was breathtaking. I’ve seen people wear shirts with things far more offensive than ‘Behead all those who insult the prophet’. The responses to those signs ranged from outrage to disgust: the very same reactions that people had to watching the video.
Australian Muslims have nothing for which to apologise after Sydney’s demonstration. There are always a few nuts in the crowd who are always eager for a scuffle with police. It’s hardly the fault of the majority of the protesters.
Muslims worldwide have very little for which to apologise in general after the video saga. It’s likely that the murders were opportunistic rather than related to the expression of anger and frustration expressed by most at the riot.
Understanding violence as language is more important than just blanket condemnation. If we want to live in a world with less violence, we should put more effort into making people feel included and capable of expressing themselves on equal ground. For that to work, we have to curtail freedom of speech where it is socially violent.
The Super Additional Extra Section About The Video
Discussing human rights is a difficult past-time. I’m sceptical about the human rights enterprise, so it’s easy for me to jeer from the sidelines. For all my jeering, I do appreciate how difficult it is to do. Human rights law is a curious beast almost entirely divorced from questions about the ontology of law. If anything, it’s extremely positivistic: human rights only exist insofar as they are enshrined in some particular piece of legislation or legal framework.
People have discussed whether there is a mechanism within human rights frameworks to have the video in question censored. The discussion comes to abrupt end given the United States’ partial ratification of human rights instruments: they specifically stated that any instrument they ratified would be subject to compliance with domestic law about freedom of speech (first amendment rights).
Very few people have discussed whether the video would have been protected under Australian laws.
I’m sure regular readers of my blog are sick of me talking about section 18C and 18D of the Racial Discrimination Act. I love the Act. I would have its babies.
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
There aren’t too many cases involving this section of the Racial Discrimination Act. It’s one of the unfortunate aspects of the Act: people don’t feel they can appeal to it without seeming like a killjoy minority. It’s one thing to have the right to complain; it’s another to feel confident enough to use the complaint mechanisms.
Under my reading, the video (a trailer still counts as a video) would be a breach of 18C(1). It was reasonably likely to insult a group of people (given the content and the way it was overdubbed, it is evident to a reasonable person — of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal — that the video was designed to insult Muslims).
18C(b) is trickier. Race is not biologically determined but socially constructed. This was noted in the Eatock v Bolt decision regarding the difficulty of defining ‘Aboriginal’. If you had a particularly ambitious lawyer, you could try to argue that being a particular kind of Muslim was an essential part of your ethnic identity. For example, the HREOC website gives an interesting example of racial discrimination:
For example, it may be indirect racial discrimination if a company says that employees must not wear hats or other headwear at work, as this is likely to have an unfair effect on people from some racial/ethnic backgrounds. [Source]
I can only think of religious reasons to wear particular headwear…
The counterargument would be that the RDA is explicitly a piece of legislation to pass the International Convention on the Elimination of All Forms of Racial Discrimination (section 7). When ICERD was passed, it was a major point that religion was not included. As such, it is arguable that RDA would not cover religious discrimination.
Imagine that a court finds that it does satisfy 18C(b), we then look to 18D to see if the video is exempt from 18C.
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
The maker of the video would have to demonstrate that the trailer was made reasonably and in good faith. Given the clouds of deception around the thing, I doubt they’d be able to pull it off. If they did manage to pull it off, it would fall under 18Ca as an artistic work. It’s difficult to imagine that they’d be able to argue that it was a good faith and reasonable artistic work when it is so obviously an attempt to upset and insult a group’s religious beliefs.