Professor Katharine Gelber is the Associate Dean (Academic) in the Faculty of Humanities Arts and Social Sciences at the University of Queensland.  Her research is in the field of freedom of speech and the regulation of public discourse.  Brisbane Dialogues would like to thank Professor Gelber for a very enlightening discussion.

Overview

The key theme of a robust discussion was that the right to free speech was never meant to allow the right to say whatever you want and that vilification is regarded almost universally as an exception to a right of free speech, even in the US with its strong constitutional guarantee of free speech.  This is despite both globally and culturally there being a movement which believes there should be no limits at all to free speech.  The discussion then centred on what constitutes vilification. 

Key points made by Professor Gelber

• When you talk about free speech you are talking essentially about public political discourse.  This is what makes democracy happen.  So where should the limits of free speech be?  Some people want incitement to violence as the dividing line, others want offence as the dividing line.

• Vilification is speech that is a public act, is harmful, is directed to a group subjected to systemic marginalisation and discrimination.  

• Systemic discrimination is not one or two rotten apples but rather it is marginalisation which is fundamental to the way our society has evolved. The remedy is fundamental social change.

• What does harmful mean – we should talk about discriminatory harm, not just about hurting feelings, it is rather ranking someone as inferior, it is discrimination against a target group.  Speech that causes offence only is not vilification. 

• Anti-vilification laws are not designed to stop people talking about difficult public policy issues but insist that statements are put in a way that does not harm others so that they also may exercise their free speech. 

• It is the target, not the speaker, that is important in determining whether there is vilification.  If the target is not a marginalised group which is discriminated against, there can be no vilification. 

• Vilification primarily deals with race, religion, gender, gender identity though there is a growing body of evidence that obese people may be regarded as marginalised because of their treatment within the health system. 

• There has been no attempt to protect women from vilification, though a case could be made.  Perhaps the problem is just too large. 

• Dealing with misinformation and disinformation is important and needs to be dealt with however framing a law against what is essentially lying is very difficult. KG believes that it was disinformation which was the cause of the loss of the Voice referendum.  

• Free speech was differentiated from academic freedom, which latter can be described as the protection of the creation and dissemination of knowledge, including the responsibility to conduct research with integrity. 

Questions/Comments from the table

• If a white person says of an Indigenous person a statement that is true but may be seen to be denigratory of Indigenous people, for example “aboriginal kids are involved in more crime than white kids”, is this vilification?  KG answered that it could indeed be vilification but it would depend on the context in which the statement was made. 

• Is Sam Kerr, a coloured but privileged person, guilty of racially aggravated harassment of a white policeman, ie guilty of vilification of a white person.  KG is of the view that it is impossible that this be vilification as the policeman has the coercive power of the State behind him, there is a massive differentiation of power and he is from a dominant racial group.   Her statement may have been deeply offensive but could not be vilification.

• Could not Sam Kerr, with Indian heritage, be regarded as speaking to a marginalised group, a white person?  Indian people are statistically overrepresented in the professional class.  KG suggests that you could still be regarded as being marginalised even if you are a successful person or group.  How you are treated is important in determining whether you are marginalised. 

• The case was cited of a Samoan NRL player who made an extremely disparaging comment about an Aboriginal and Torres Strait Islander player.  Both players could be regarded as being part of a marginalised group.  Is this vilification?  KG responded that it is the identity of the target that is important, not the speaker when determining whether vilification has occurred. Dehumanising by analogising with animals is textbook vilification.

• Is power the main metric here?  KG replied that perhaps it is but the concept has never been framed that way, it has always been framed as race, religion, gender, gender identity. She made the point that the protection against vilification of gender does not apply to heterosexuals as they are not regarded as marginalised. 

• How is it determined who is marginalised?   KG agreed it may come down to statistics.  

• Isn’t the slogan “from the river to the sea” genocidal and so against the anti-vilification laws as it would make the Jewish people feel unsafe, ie cause them harm?  KG suggested that she has not heard this chanted at the University of Queensland and  would be disturbed by this statement but wonders whether the people chanting this slogan know what it means and so it would be better addressed by an educative process. 

• Why do some universities accept the chant “from the river to the sea”  as it refers to the Jewish people but would not accept a similar type of comment against Aboriginal people or against Chinese people.  (KG did not agree with this statement.) It was suggested from the table that it may be as a result of an unhelpful connection between vilification and power, ie the Jewish people are regarded as a powerful group and therefore not marginalised. 

• The comment was made that it is of primary importance how government responds to various situations.  Many complaints have been made under the anti-vilification laws but very few have made it to the courts. 

• The comment was made that defining vilification in this way, namely only applicable to an oppressed target group is divisive and not good for the country. It encourages people to look for ways that they are oppressed.