The government prosecuted a racist. What are the implications?
Chris Nelson, a chiropractor from New South Wales, was arrested this week for offensive Facebook comments directed at outgoing senator Nova Peris. Peris, an aboriginal woman, was put up for election by Prime Minister Julia Gillard in 2013. She recently resigned from office citing the need to spend more time with her children.
In a Facebook comment, Nelson said to Peris:
Nova f**k off. You were only endorsed by Juliar because you were a black c***. Go back to the bush and suck on witchity grubs and yams. Stop painting your f**king face with white s**t in parliament. Other than being a runner you are nothing.
This kind of speech is blatantly and disgustingly racist. It is unacceptable and I would disassociate with anyone who spoke like that.
But it shouldn’t be illegal.
Nelson is charged with using a carriage service to cause offence, under Section 474.17 of the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) (2004).
The Act states that a person is guilty of using a carriage service (services that carry information) to cause offence if:
the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
This crime carries a maximum penalty of three years imprisonment.
If you’re not unnerved by the idea that someone can be charged for causing offence, here’s why it’s a problem.
Firstly, the charge is subjective by nature. Who determines what a reasonable person would consider offensive? Ultimately a judge would decide that. But there are many factors influencing a judge’s conclusions. Public opinion, political movements, personal biases, legal precedence, acts of government – these all impact that decision. As these factors are always changing, what is commonly regarded as offensive is also always changing.
It is easy to manipulate vague and subjective criteria. At some point in Nazi Germany it became the opinion of the “reasonable person” that the views, affairs, and lifestyles of Jews were offensive. Influenced by political movements, the legal system, and government policies, public opinion shifted to considering Jews to be offensive. In turn, anyone defending Jews was communicating an offensive opinion and was liable to be reported by the reasonably offended person.
Secondly, to charge someone with causing offence is to deny the right to freedom of speech. Freedom of speech is the right to communicate one’s opinions and ideas without fear of government retaliation or censorship.
There is an important distinction between communicating an opinion and a call to action. Last year a man in Sydney was arrested and charged under the same statute as Nelson, but for threatening rape online. Threatening rape is not protected by freedom of speech for the same reason screaming “fire” in a theatre is not. It is speech which directly invokes action which will physically harm people – a call to action. Whereas an opinion is a view or judgement formed about something. The call to action of “I would rape you” is categorically different to the opinion that someone is a “black c**t.”
So the man charged last year is rightly charged with a crime for his call to action. But why should a disgusting, racist opinion be protected? J. K. Rowling, commenting recently on a petition to ban Donald Trump from entry to the United Kingdom, put it excellently:
“I find almost everything that Mr. Trump says objectionable. I consider him offensive and bigoted. But he has my full support to come to my country and be offensive and bigoted there. His freedom to speak protects my freedom to call him a bigot. His freedom guarantees mine.”
If you seek the removal of freedoms from an opponent simply on the grounds that they have offended you, you have crossed a line to stand alongside tyrants who imprison, butcher, and kill on exactly the same justification.”
In short, the right of anyone to freedom of speech has no foundation at all unless it is upheld for everyone. To deny anyone this right, no matter how offended we may be by their ideas and opinions, is to deny it to everyone. It is to exist on the same ethical plane as the North Korean government, which imprisons and kills dissidents.
It is terrifying that a Western government has arrested someone for saying something offensive. It’s a dangerous precedent which jeopardises freedom of speech for everyone.
To appropriate Rowling’s maxim: His freedom to call someone a black c*** protects your freedom to call him a white c***. His freedom guarantees yours.