Incitement to Racial Hatred: Issues and Analysis · Incitement to Racial Hatred The concept of incitement to racial hatred is self-explanatory. Some of the means used have been cited

Pettman, Ralph Incitement to Racial Hatred:Issues and Analysis Canberra, AustralianGovernment Publishing Service, 1982.

Dr Ralph Pettman

Human Rights CommissionOccasional Paper No 1

This is the first of a series of Occasional Papersto be published and distributed by the HumanRights Commission. It was prepared within theCommission by Dr Ralph Pettman, a memberof the project group that has been working onthis topic.

Occasional Papers will be issued by theCommission from time to time to deal in depthwith a particular problem or subject. In somecases, as with this paper, they are intended toprovide an analytic review of a subject, raisingwhat are seen to be key issues and arguments. Inother cases, they may set out facts orbackground to assist in a better understandingof a problem or a subject area. Their overallobjective is to promote greater awareness andpublic discussion of human rights.

None of the views that may be expressed orimplied in the Occasional Paper series arenecessarily those of the Human RightsCommission or its members, and should not beidentified with it or them.

Table of Contents

Racial Hatred

Incitement to Racial Hatred

Freedom of Expression vs Censorship

Freedom of Expression vs Freedomof Opportunity

How Have Other Countries Responded?

What Is To Be Done (If Anything)?Freedom of ExpressionGeneralising the IssueConciliationEducationGroup DefamationClass ActionsThe Seven Key Aspects of

Contemporary Legislation:the constituencythe actthe nature of the actthe effectthe intentdefencessanctions

ConclusionReference NotesAppendix I

1Making Multicultural Australia Incitement to Racial Hatred: Issues and Analysis

Incitement to Racial Hatred:Issues and Analysis

Incitement to Racial Hatred:Issues and Analysis

"Good gracious. Anybody hurt?""No'm. Killed a nigger.""Well, it's lucky because sometimes people do gethurt."(Mark Twain. The Adventures of Huckelberry Finn)

Racial Hatred

Human beings have a passion for categorisation.Depicting the graded variety of the world indiscrete symbolic forms is one of our most deeprooted propensities.

Biologically, "race" refers to specific patterns ofgenetic difference within a species as a whole. Asa species we can interbreed if we want to, ourprogeny will be viable, and the differencesbetween us will be very small indeed comparedwith the differences between a human being andanything else. If and when we do breed, ourchildren inherit a shuffled sequence of theparental genes. The shuffling is so effective thatthe outcome, except in the case of identicaltwins, is always genetically unique, which meansthat in this sense practically every individual istoo. This is why there is such variety in humanpotential and such a diversity of personalendowments.

Mating opportunities are not everywhere thesame, however, since comparatively few realisethe biological possibility of breeding withsomeone far removed from where they live,either geographically, or by socio-economic,linguistic, or religious distance. Otherenvironmental influences vary too, causingnatural selection and adaptation. Hence, withinthe common gene pool that all humans share,there are eddies. The eddies are not very large -Lewontin argues that only 6% or so of humangenetic diversity is "racially" derived, 8.3%being due to differences between the more localpopulations within any one "race"(1), whichleaves by far the largest fraction due to thedifference between individuals as such.

The findings (i) that human genetic diversity isevolutionarily advantageous, and we shouldcelebrate it as such since we simply do not knowwhat qualities will prove most adaptive for anyfuture stage of our species, in part or in whole;(ii) that human genetic diversity is most evidentwithin the major groups that might be made ofmankind, rather than between them, theconcept of the latter proving problematicanyway because of the way in which humanraces form a genetic continuum; and (iii) thatour genetic diversity as a species is soextraordinarily rich that under "most systems ofequal opportunity and equivalent selection, anynumerically significant segment of the humanspecies could... probably replace any other withrespect to behavioural capacities”; (2) all seemto be particularly important. Any debate abouthuman values ought to be informed by suchempirical propositions which, while ultimatelyinconclusive in themselves, are far fromirrelevant.

So much for science. Racial hatred ignores suchniceties. The surge of self-determination in the20th century, both individual and collective, hasplaced the issue of race high on the global socio-economic and political agenda. As assumptionsof superiority have been challenged, theemotional response that would once haveconsidered those categorised as inferior - asbeneath contempt, if not actually inhuman - hasall too often turned into hatred. Such feelingswere intensified where groups, identifiablydifferent, came into competition for the sameset of resources, particularly where these werescarce ones.

The idea of "pollution", common to manyforms of social control (note the pollutiontaboos of countless traditional andcontemporary societies - linked by Douglas(3)to concepts not of dirt but of "displaced matter"and a general desire to order the cosmos, thushelping allay deep fears about its arbitraryconstruction) - has been allied with “race" tosanction all sorts of nonsense about ethnicpurity and uncontaminated breeding stock andthe perils of miscegenation (perils belied inscientific fact by the importance of "hybrid


rigour").

Fake plans for world domination, such as theProtocols of the Elders of Zion, surface withmonotonous regularity, and are meant to justifyanti-semitic sentiments on a mass scale. Policiesof repatriation ("send them back where theycame from") are typical planks in many racistplatforms. Institutional humiliation andharassment abound - the discrimination in areasof housing, employment, education, access towelfare services and other public amenities -formally organised by the state in a country likeSouth Africa less formally so elsewhere. Racistorganisations proliferate and equalopportunities, even in democratic societies, arehard won and desperately difficult to enforce.

Australia is not immune in this regard, asmembers of community relations and anti-discrimination bodies amply testify. Thesymptoms of overt and covert racism, bothinter-personal and institutional, are manifesthere.

Incitement to Racial Hatred

The concept of incitement to racial hatred isself-explanatory. Some of the means used havebeen cited above; others include written andprinted propaganda, spoken words used inpublic meetings and other public places (whichraises the question of defining what "public"means), radio and T.V. broadcasts (or bitsthereof), filmed or staged material, gestures(such as forms of salute), pre-recorded telephonemessages, the wearing or display of specialclothing, signs (such as graffiti), flags, emblems,insignia, and any other such representations(and, where appropriate, the distribution ordissemination or same)', random violence up toand including riots, and membership of, or theprovision of assistance to, racist organisations inparticular and racist activities in general.

Incitement can be inflammatory and the hatredand violence obvious to all, or it can take muchmore subtle forms, to the point where race isnot even mentioned. This raises much broaderquestions: whether anything that excites ill-will

or hostility or intolerance, or anything thatexposes a people to sentiments that ridicule anidentifiable sector of it, is serious enough towarrant concern? Ill-will, hostility andintolerance are more diffuse than hatred, butthey can be as much, even more significant thanit, when it comes to considering the causes ofcommunal racism. Need a breach of the peacebe impending to warrant our concern, or shouldwe be looking deeper and wider - for theseedbeds of dissent?

There are other issues, too. Is it importantwhether those doing the incitement seem tomean what they say, or should one allow forinadvertence, for reckless rhetoric (the questionof intent)? Should one link the concept ofincitement to that of rights, giving as groundsdeserving of intervention those acts where rights(civil? political? social? economic? "human"?)have been (or look likely to be) abridged (whichraises the question of the specific character ofthe behaviour itself)? What amount of overlap isthere between the concept of incitement toracial hatred and that of group defamation; canthe latter be used, in other words, as a way ofincorporating the former?

Freedom of Expressionvs Censorship

The "classic" objection to governmentalattempts to control incitement to racial hatred isthe defence of freedom of expression.

At one end of this spectrum are those who seeany legislation that would inhibit speech orpublication, however pernicious that speech orpublication happens to be, as the thin edge ofthe wedge. Rather than drive racist sentimentsdeeper, they would argue, to fester and infect,we should allow them to flourish unrestricted.In this way the sources of social disease mightbetter be identified, and met by counter-propositions as appropriate. Freedom ofexpression is central to the liberal traditions ofthe West; it was hard won and should be closelyguarded against any sort of censorship.

At the other end are those who would count in


the multifarious costs of such uninhibitedbehaviour, and who would advocate as aconsequence (carefully delimited) controls uponthe diverse forms of it in the interests ofpreserving public order. The debate thattraditionally counterpositions the good (offreedom of expression) and the bad (ofcensorship) shades, that is, into one in whichone civic good (freedom of expression)confronts another (public order), and whatmight '"have seemed initially a simple matter ofbeing either for or against free speech becomes asomewhat more complex matter of balancing offthe competing values of this and "the peace",where automatic deference to neither obtains.

Freedom of Expression vsFreedom of Opportunity

The debate does not end here however. As weprobe the roots of public order we find that weare faced with the question of what makes forsocial cohesion? Rather than protecting apreferred value (free speech) from erosion - arather negative approach in this context - wefind that countering incitement to racial hatred(should we choose to do so) means fosteringfreedom of opportunity (the right, that is, ofeach individual to build his or her life and tolive in an atmosphere of mutual tolerance,understanding and respect) - something thatproves in practice to be much more radical inthe real sense of that term. What emerges is athird argument, more comprehensive again, thatcounter-positions the good (of freedom ofexpression) and the good (of freedom ofopportunity), and places upon the well-meaninglegislator the task of striking the kind of balancethat has bedevilled democratic communities formillennia.

How Have Other Countriesresponded? (4)

Of the politico-judicial systems mostcomparable to the Australian (Britain, NewZealand, Canada and the United States), onlyAmerica has not made specific provision forracial incitement. One should note (see thefamous case of Beauharnals v. Illinois for

example)(5) occasional attempts there to pre-empt group libel or to punish forms ofincitement in the interests of maintaining publicorder. America's revolutionary traditionhowever, enshrined in the First Amendment ofits national Constitution, continues to stand inthe way of attempts by particular States of theUnion to introduce anti-hate legislation.

How one assesses the success or failure of suchan approach is hard to say. The U.S. hassuffered an appalling amount of racial hatredand there have been the high costs of all theconcomitant violence and discrimination. Itwould take a particularly brave person, or aparticularly dogmatic one, to say with anydegree of certainty whether or not this has beenworth the country's commitment to such anuntrammelled conception of free speech. It is anelementary question, but one always worthasking: freedom is for whom, to do what, forhow long?

Canada, though close to the U.S. and muchinfluenced by its jurisprudential example, chosein 1970 to introduce federal legislation meant topunish those who might incite hatred againstsections of the public identifiable in terms oftheir colour, race, religion or ethnic origin, andlikely to lead to a 'breach of the peace; or whomight wilfully promote such hatred' per se. Thiswas followed up by a specific clause of theCanadian Human Rights Act of 1977, and byprovincial human rights codes, the most recentof which was British Columbia's Civil RightsProtection Act of 1981.

The Canadians were especially concerned, whenthe original Acts were introduced, to control theeffects of hate propaganda. The powers theyconferred have not been much used, and it ishard to say what would constitute empiricalevidence of the success or failure of theenterprise. Much of the significance oflegislation of this sort is symbolic. It gives overtrecognition to official concern with the issue ofracial hatred, and formally sanctions the attemptto prevent the incitement of it. The fact-thatfew offenders have been brought to court doesnot detract from these functions. There is also a


certain inhibitory effect, though this too wouldbe difficult to measure with any precision. Howmany racially inflammatory acts have not beenperformed because of the deterrent presence oflegislation prohibiting them?

The UK, under Labour Party leadership, firstmoved to ban incitement to racial hatred in1965. The original initiative was taken verymuch in the interests of public order and therewas seen to be a close link between the two.Non-white immigration on a relatively largescale, and the upsurge in bigotry and unrest thatwent with it, made the link relatively easy to see;and the need for some kind of legislativeintervention seemingly urgent. There wereproblems with the result, however, particularlyin establishing a protagonist's "intent", indefining key words like "hatred" and "insult", orin getting the Attorney-General's approval toprosecute. As a consequence the incitementprovisions were amended in 1976, though notall the suggested reforms were made. As, inCanada, prosecutions have been few.

Whether things would have been worse withoutsuch legislation is once again more difficult tosay. What is clear in the British case is howmuch the efficacy of such provisions depends onthe commitment of those whose job it is toadminister and enforce them. Much more couldhave been done than was done, and muchviolence avoided, if the constabulary had beenprepared to do it - particularly after 1976. It isnot enough apparently to place on recordgovernmental good intent, and expect legislationto apply itself.

New Zealand followed the pattern of the U.K.legislation (with some revisions) passing an anti-incitement Act in 1971. Its social history hasbeen quite different from Britain's, and thepermanent presence of a large Maori populationhas made for different attitudes, and differentstrategies of inter-racial accommodation. Theofficial position at the time seemed to be thatthough legislation of this sort was not strictlynecessary, it did provide a good opportunity forthe Government to be seen to be doing goodworks. This opinion could not belie a good deal

of racial resentment in the society at large,though not much of this was of the extreme sortthe anti-incitement provisions were designed toprevent. As elsewhere there has been a notablepaucity of prosecutions. Indeed, in 1977 the Actwas amended to include conciliationprocedures, and these have proved morepopular.

The Commission's Occasional Paper No. 2,"Incitement to Racial Hatred: the InternationalExperience", contains details of the legislationand experience of several countries with respectto racist propaganda. Copies are available onapplication to the Commission.

What is to be done(If Anything)?

Taken together these cases (and others as well,particularly European ones) suggest a number ofpoints at which it is worth expanding on thetwo basic alternatives: whether or not, that is, tolegislate to control incitement to racial hatred.We can decide -

A. not to legislate, either

(i) because it inhibits freedom ofexpression, or

(ii) because a good law is not possiblehaving looked in detail at thedifficulties involved in framing one,e.g. questions as to who suchprovisions might cover, how anti-incitement activities might bedescribed, what media to include,whether it would be necessary toestablish intent, what defences - if any- might be allowed and what sanctionsto apply; or

B. to legislate, regardless of these objections,

(i) in very general terms that prohibitincitement to hatred withoutmentioning race or ethnicity ornationality as such; or


(ii) by providing for more informal, lesscourt-centred alternatives - machinerythat might investigate, conciliateand/or mediate such problems, ormight implement socio-educationalpolicies of some kind or

(iii) in terms of group defamation (makingthis unlawful, even criminal, whetheror not we permit class actions too);and/or

(iv) in the particular terms typical of mostof the countries discussed, whichmeans providing adequate answers tothe questions asked under A(ii) above.

None of the country cases is without itsproblems and deserves uncritical acclaim. Wecan learn from them all, however, as much aspossible about the pitfalls involved, and whatthe main areas of analytic concern ought to be.Let us look at the latter in a little more detail.

Freedom of Expression

No-one asserts an absolute right to freedom ofexpression. Some come close to it, and they arethe ones least likely to see legislation as adesirable part of the process of social reform.The opposite of free speech and press they tendto construe as a state of enforced silence. Thosemore removed from such an assertion, however,tend to have a rather more interventionist ideaof how the law relates to the rest of society. Forthem the opposite of unimpeded expressionneed not be enforced silence, since they preferto countenance the concept of civilised restraint.

The ideas above are loaded ones, full to thebrim with the freight of further beliefs. No-onedisagrees with the proposition that in ademocratic society free speech is central, andthat any restrictions upon it need to besupported by the best of reasons. Furthermore,what seem to be good reasons today can becomebad reasons tomorrow. This too is obvious. Butthen, equally obvious are the dangers inherentin making a fetish of any human principle, andthis is where the trouble begins, since rights and

freedoms are made by human beings, for humanbeings, and they must be made andadministered with humanity or they are broughtinto contempt.

A long list of contemporary states have beenprepared to compromise freedom of expressionat least to the extent necessary to protect theintricate fabric of society at large, and the equalopportunities of all their members. Have theygone too far however? Have they done the rightthing? Truly tolerable and stable communitiesare those informed by human conscience.(6)They also require the leaven of debate if thatinforming process is not to become a dictatorialone. As a consequence legislation in this areahas not been easy to draft. While outrightdefamation is readily defined and punished,what of the sort of incitement that takeslegitimate social resentments and puts the blamefor them upon scapegoat groups in ostensiblylegitimate ways? These may be no less, and mayperhaps be much more, effective in terms ofraising racial hatred. Protecting freedom ofexpression while preserving fair play can, as aconsequence, present very real problems indeed.

Libertarians tend to rely on the good judgementof the majority, decrying those who would usethe power of the state (whether or not expressedin the "public interest") to push theirpreferences (however enlightened) "down othersthroats without allowing them the opportunityto be persuaded...”(7) Advocates of incitementlegislation on the other hand would point upthe dangers democracies face and the insidiousways in which they have been subverted in thename of that very same majority. Canada'sSpecial Committee said:

While holding that over the long run the humanmind is repelled by blatant falsehood and seeks thegood, it is too often true, in the short run, thatemotion displaces reason and individuals perverselyreject the demonstrations of truth put before themand forsake the good they know... Those who urgeda century ago that men should be allowed to expressthemselves with utter freedom even though theheavens fall did so with great confidence that theywould not fall. That degree of confidence is not


open to us today... however small the actors may bein number, the individuals and groups promotinghate... constitute a 'clear and present danger' to thefunctioning of a democratic society. For in times ofsocial stress, such 'hate' could mushroom into a real.monstrous threat to our way of life. (8)

This does beg the question of how we define"hate", though this in turn need not mean thatwe should attempt no such definition at all. Theimpossibility of obtaining completely asepticprocedures would not permit a concernedsurgeon to perform operations in a sewer, orserious attempts by conscientious legislators todraw a line.

Generalising the Issue

It has been argued that one should not legislateagainst racial hatred per se, and indeed that it iscounter-productive to do so since this drawsundue attention to divisions in society that arebetter dealt with in a more oblique way. Hence,if legislation is deemed desirable, then weshould pass provisions prohibiting incitement tohatred in general and not nominate ethnic,national, religious or other such groupings inparticular, thereby covering all contingencieswithout making an issue out of any one ofthem. To some extent public order statutes dothis already.

One drawback to this approach would seem tobe the very comprehensive character of theresult. Legislative provisions so wide-rangingbecome extremely slippery to use, preciselybecause of their unfocussed character. Thecourts, singularly averse to such vagueness anduniversality, shy away from them. Indeed, allthose who enforce the law are invariably muchhappier with the practical, the concrete and' theprecise. This is not the only problem though.Racial hatred is a fact.

Incitement to it exists and in manycommunities is a most immediate phenomenon,having particularly pernicious and pervasiveconsequences. One's "racial" or "ethnic"characteristics; one's "nationality" or "religion";these are things one either can do nothing about

it, or can change only with great difficultyhaving been born that way or having beenconditioned- probably from birth, to the cultureor the beliefs involved. To be singled out ongrounds like these is to be given very littlechoice.

Conciliation

It is not uncommon to advocate anadministrative rather than a judicial response toincitement to racial hatred, at least as a line offirst resort.

Criminal proceedings mainly serve to try andpunish. They hardly allow the most sensitiveand informal of proceedings, and they tend todeter the wrong-doer by threat of prosecutionrather than by working to alleviate the source ofthe problem. They present other shortcomingstoo. If the law is not to be brought intodisrepute, it needs to be precise enough to beapplicable, and describe crimes of a kind thatcan be detected. It runs ever the risk of helpingto consolidate that body of opinion it isdesigned to oppose, thereby exacerbating thesocial divisions it ought supposedly to alleviate;it needs the support of the police and the courtsto be effective; and the standard of proofrequired for conviction is very high.

Civil proceedings on the other hand call for alarge financial outlay (unless instituted underthe auspices of a legal aid program of somekind), the outcome is often not very satisfactory,and the prospects for reconciliation are remote.

Hence the significance of conciliationprocedures (or mediation ones - they are not thesame), administered by a commission ortribunal for example, with its own enforcementpowers. The courts and the police need not beinvolved, which makes them considerably lessdifficult to initiate, and therefore considerablymore attractive to those who have suffered atthe hands of officialdom and have come toexpect little of it. They smack less of coercionand in this respect can seem more appropriateto the nature of the misdemeanour. And theycan be much more confidential.


The problem remains however, what to do withthe dedicated racist who incites hatred becausehe or she wants another kind of societyaltogether, and who is hardly likely, as aconsequence, to accept the authority of thecourts let alone that of some lesser body. Tocatch these people one either has to rely on thereformist capacities of freedom of speech (thelibertarian approach) or cast wide the safety netof the law, mitigating their influence throughthe use of the sort of unequivocal statement thatonly a democratic statute about what societyconsiders permissible - even one rarely cited -can make (which is what the interventionistwould recommend).

The arguments about free speech have beenrehearsed above. The interventionist ones areless familiar however. Drafting legislation to thiseffect is one way, in this view, of saying what isand what is not acceptable in civilised discourse.It gives legal voice to victims who wouldarticulate their entitlements, and it is a clearexpression of society's concern. Whileconciliation or mediation may well be a goodapproach to put "out front", it does not, ininterventionist parlance, obviate the necessityfor legislation. Indeed, the particularinadequacies of conciliation and mediationwould only seem to make that necessity moreapparent.

Education

It is often argued that the law is an unwieldyweapon and when used too far beyond what themores of the majority will permit, it becomesimpotent and is largely ignored. Whenlegislation to prohibit incitement to racialhatred of contempt is described in these terms,as just such an unwarranted extension, thenthat, the protagonist typically concludes, seemssufficient cause to do no more about it. Andthere is a deal of good sense in this point ofview. There is nonetheless a counter-position tobe considered that stipulates (i) that the law canplay a significantly less awkward and moreconstructive role than the above would suggest,and (ii) that legislating to prohibit racial hatreddoes not ignore majority mores - quite to the

contrary, it can allow them specific expression.

The assumption that laws do not changepeople's prejudicial attitudes is, of course,incorrect. Law has long proven an effective wayof combating racist-propaganda of all kinds.Though one bold legislative initiative is hardlylikely to eliminate all the misgivings and theemotional confusions involved, much can andhas been done to protect the targets of racialincitement by setting through law anappropriate moral example, and by modifyingthe behaviour of many a would-be racist.Modifying such behaviour is important since inits .train, if we are to believe contemporarystudies of the effects of this kind of legislation,come changes in attitude and reductions in'racial prejudice. This applies particularly tothose members of society one might call"conventional", plus those who submit mostreadily to authority, who would remainotherwise untouched by the appeal to reason orto a sense of their altruism or empathy.(9)

The debate between active and passiveconceptions of the law implicit here is anextensive one. Each side has venerableantecedents. No-one, however, denies thateducation is called for if one is to build aracially harmonious society, and the point to bemade is that law has an important part to playin the process of education itself. This isparticularly apparent with group defamation,since group defamation can become part of aculture at large, and as such can only be broughtto an end where a populace effectively condonesit. To prohibit such libel is to intervene in thatacculturation process, to prevent miseducation,and to permit more tolerant alternatives to takeits place.

The conspicuous failure to legislate social mores,Such as the era of Prohibition in the UnitedStates, demonstrates the need for majoritysupport if a democratic law is to work. Mostcivilised individuals in contemporary democrac-ies, however, do actually subscribe - more orless enthusiastically - to the ideals of racialharmony, and if not, they will find it simpler toconform to what the government does than


actively to fight for other laws. So what thegovernment does can be crucial in this regard.

The law still has its limits. Legislation, it isargued, can lead to complacency, and tocompliance in form but not substance. And lawsdo not always have the consequences intendedby those who enact them. Even the mostenlightened legislation furthermore, prohibitingincitement to racial ill-will or whatever, will notrid a community of hate. What it can dothough is help control its overt manifestations.Legislation sets out rights and establishes themeans (perhaps not at once or very often, butthe means nonetheless) for redress. And wherenothing in particular is being done, making alaw, it is argued, can make a considerabledifference to the constellation of influences atany one time.(10)

Group Defamation

The differences between "defamation" and"incitement" are most clear in the Canadiancase. Section 281 of Canada's 17 CriminalCode created three substantive criminal offencesunknown at the time to its common law. Thefirst prohibited genocide. The second wasdesigned to deal with the public incitement ofhatred where such incitement seemed likely tolead to a breach of the peace. The third made itan offence wilfully to promote hatred againstany group identifiable in terms of its colour,race, ethnic origins or religion. This last wasspecifically included as a group defamationclause.

The issue of group defamation was canvassed inthe American case of Beauharnais v. Illinois,where Frankfurter J. seemed to draw a directline between the libel of an individual and thatof a "defined group". Defenders of freedom ofexpression reject the analogy as an unconvincingone. However an individual's status andopportunities in society may well depend asmuch on the status of and options open to thegroup to which he or she unavoidably belongs,as any more personal qualities he or she mayhave.

Some who concede the need for groupdefamation laws would prefer them to be civilnot criminal ones. However, a civil action fordamages would likely be unworkable, because ofthe lack of availability of class actions.

And if the issue of incitement is as important asit is made out to be, then an unequivocalstatement is probably called for of the sort onlycriminal law allows.

Deciding these issues will not exhaust that ofincitement to racial hatred however. Whilegroup defamation and incitement to racialhatred may overlap, the former is a more generalmisdemeanour. Incitement may occur in astraightforward fashion with the stirring up ofsentiments of passionate dislike for people insome target group (whether this provokes publicdisorder, or only seems likely to, or where thestate of public disorder is not taken intoconsideration at all). It may also be done verysubtly, involving group defamation of severalsorts.

Though one cannot make too much of thedistinction, since the issues do merge, it is stillworthwhile making it if only to remind thosewho might think that group defamation lawswould cover all contingencies. For they maynot. It is quite possible to incite racial hatredwithout defaming a group's good name. Onecould give public speeches about the causes ofunemployment and the content of a country'simmigration laws, catalysing in the processwidespread resentment, even hatred andviolence, against a national minority, withoutonce being threatening, abusive or insulting.There may well be the need as a consequence tomake provision for these and other such acts,especially where the public peace is at stake.

Class Actions

Whether as part of a civil action for groupdefamation or as a criminal one, the case isoften argued for class actions that would allowthe claims of a number of people to be broughtagainst the one defendant at the one time. Theone plaintiff could then sue on behalf of a much


larger number, and the subsequent court rulingswould apply to all. This is a secondary issuehowever, and while it would help in controllingincitement to racial hatred for ethnic groups, forexample, to be able to bring class actions thatallow for damages, this is a question that shallnot be discussed in detail here.(11)

The Seven Key Aspects of ContemporaryLegislation

the constituency

Whom do anti-incitement laws seek to protect?Presumably, every potential victim of "race"hatred (or contempt, or whatever). The conceptcan be broadly construed to embrace that ofethno-religious social entities like the Jews ornational groups somehow rendered a minorityin another culture or state, but these raisedefinitional problems of their own.

It has been argued that "race" is so thoroughlymisleading a concept that it should beabandoned. And indeed, the term is a highlycomplex one, fraught with emotiveconnotations and much abused. Very fewserious attempts to categorise human groups arepatently false, but every one will be radicallymisleading in fact.

Whatever we make of the scientific status of"race" as a term, it nonetheless plays animportant part still in sustaining the unequalconditions under which particular groups withinmany societies must live. As a consequence: "Itseems that the only safe way to define race is tosay that race is whatever the people in positionsof power say it is... for racism is about power.Nothing shows this more clearly than the widelydifferent definitions of race itself".(12)

When we discuss incitement to racial hatred, weare not talking about all social groupingshowever. We are not talking about thedifferences between the sexes, or marital status,or the handicapped, or geriatrics or children.We are talking - however crude the labellingprocess - about people in a general populationwho happen to be identifiably different because

of particular inherited characteristics or acquiredcultural qualities, that have been turned againstthem to socially and economicallydisadvantageous effect. Anti-incitementlegislation does therefore typically attempt to listthose to whom it is meant to apply (thoughthere are cases, like the Canadian CriminalCode, which merely cite "any identifiablegroup" and leave it at that). The problem theJews present (is their defining characteristic theirown ethnic awareness, or their religion?) isusually solved in practice by opting for"ethnicity" (this was an important issue inEngland where it was decided not to include"religions" as groupings, so that one now risksindictment there for insulting or abusing orthreatening somebody because they are brownor Indian, but not because they are Hindu).

The question of what groupings to nominatespecifically is one that has to be answered in theparticular social context in which it is asked.Whether or not to include "religion" (or, moreloosely, "creed") likewise depends on the societyconcerned. A list of constituents of some sortdoes seem called for however if one is seriouslyto consider such legislation, since catch-allcategories are unsatisfactory if only because oftheir highly generalised and unspecific character.

the act

What sort of behaviour might anti-incitementprovisions proscribe? 'If such legislation is to becomprehensive enough to cover all the ways inwhich "racist" sentiments can be conveyed, thenit will need to make mention of spoken,printed, published, pictorial, broadcast(including radio and television - whethertransmitted or' cable), taped and recorded(including video-cassette), filmed or stagedmaterial, plus notices, mime, gestures (such asforms of salute), telephone messages, thewearing or display of special clothing, signs,flags, emblems, insignia, and any otherrepresentation, and where appropriate thedistribution or dissemination of same. On theother hand a brief formula like BritishColumbia's “any conduct or communication"might suffice - though it would be open to the

1 0Making Multicultural Australia Incitement to Racial Hatred: Issues and Analysis

same objections as other overly abstract legalexpressions usually are. What, too, of racialistcandidates who stand at elections; of racistmeetings; or racialist marches? Presumably if allthe above were banned there is very little thatpeople at such events could publicly say ordisplay, so anti-incitement objectives wouldhave been met anyway.

Defining "public" and "private" is also moredifficult than might at first appear. Liberaldemocracies, with their individualistpredilections, are likely to place a priority onprotecting what people do in small numbersamong themselves, though this has not alwaysbeen the case. Indeed, the Canadian SpecialCommittee made a point of recommendingprovisions that could reach over this line, since agood deal of hate propaganda was first fostered,it argued, under such circumstances, andnipping incitement in the bud meant having thepower to enter what are normally seen to besacrosanct domains. As a consequence thefederal Canadian legislation only excludes fromits purview "private conversations", whichwould, on paper, severely restrict the range ofindividual actions possible in this regard. Othercountries have been more concerned to waituntil incitement enters the public sphere, andthough this may be rather late in the day, itwould be unrealistic in terms of prevailingpolitical ideologies to expect much else to findwide-spread legislative favour. Nor, arguably,should it.

Defining "public" still needs attention.Loudspeaking in a city square is obviousenough, but what about an invited audience ina local hall? What about abuse across a back-fence - that is, racist incitement audible inpublic but issuing from private property? Isthere anything conceivably that does not havepublic consequences? Though it would be animportant part of any incitement law., thedefinition of what is "public" has broadimplications and one would want to explorethese to confirm how the word should be usedin this case.

the nature of the act

Wording has been very varied on this issue, thecontinuum of excluded activities ranging fromwhat seems to be no more than bad-mouthing,through scurrilous invective, to threats ofoutright violence. British and New Zealandlegislation is phrased in terms of speeches orpublications that are "threatening, abusive orinsulting". Canada's criminal code mentions theincitement or promotion (of hatred), butnothing more specific than this. Its provinciallegislators have gone into greater detail,however, Saskatchewan for examplecircumscribing a list of activities tending orlikely to tend to delimit the enjoyment of one'slegal rights, or anything which "exposes or tendsto expose" people to a number of undesiredinfluences. (The concept of "exposure" was alsoused in the Illinois statute of 1949, and couldbe a particularly useful one, despite itsvagueness, since it would allow the law to coverthe case where the racist would rather create theconditions for disharmony than incite orotherwise promote it outright.)

Which raises the question again of how such"conditions" might be defined, without undulyrestricting free speech. What to one person is aninsult, to another is a funny joke. What seemsabusive may, it is claimed, be satiric affection.What threatens here, merely stirs and stimulatesthere, and so on. It would probably beimpossible to find a form of words satisfactoryfrom all points of view. The whole area is verysensitive, and it would seem advisable, therefore,to eschew it altogether.

the effect

A wide range of consequences has been listed asoffences under legislation of this sort. Thestrictest construction cites actual violence, thatis, a discernible breach of the peace (at whichpoint the problem is covered, under mostjurisdictions, by public order ordinances). Lessstrict and more problematic is the "clear andpresent" likelihood of same. These tests areobjectively applicable in a way the following arenot. They are the least ambiguous and therefore


the least controversial of effects.

In practice the problem typically proves morecomplex than this, and more complex laws arethen called for if racial hatred is to be contained.It became an active issue in England, forexample, whether in establishing the likelihoodor not of a breach of the peace one had to takeone's audiences as one found them. It wasconcluded there, and it would seem reasonableenough to have done so, that indeed oneshould; in other words, that one cannot assumethat a public meeting will consist of reasonable,right-thinking men and women, without undueattachment to particular points of view, slow toanger and restrained in dissent.(13)

Since racial hatred is widely taken to be onesource of public disorder, anything thatpromises more of the same is arguably worthprohibiting too. "Hatred" has proved difficult todefine, however, which is one cause oflibertarian dissent. In British courts it is notuntypical, for example, for those who claim thatcertain acts are conducive to racial hatred tofind their plea turned around, and the same actsdescribed as more likely to create sympathy forthe victims. The danger may not be a "clear andpresent" one in such cases, but communalharmony is jeopardised, and just as decisively aninterventionist would argue, by the inculcationof emotions short of hatred, such as ill-will,hostility, ridicule, contempt, intolerance,derision, obloquy - anything in fact (to quotethe Saskatchewan Code) that belittles, oraffronts the dignity of individuals or ofidentifiable groups of them. Even issuesostensibly free of emotion altogether - such asarguments and ideas based on assumptionsabout the superiority or inferiority of one socialgroup in comparison with another - can havedivisive effects when gratuitously used to enrichthe soil in which the seeds of civil strife areknown to flourish.

The further one moves away from theimmediacy of public disorder, the more likely itis that legislation will endanger our freedom ofspeech, the more tenuous becomes the case forintervention, and the more appropriate that for

education and debate.(14) Nonethelessconsiderable pains have been taken, in notablydemocratic societies, to prevent the promotionof the more covert forms of "racism". BritishColumbia's Civil Rights Protection Act, forexample, includes hatred, contempt, and asuperiority/inferiority clause as prohibited acts.It also adds, as does the Saskatchewan Code,interference with another's civil rights asactionable. The latter defines interference insome detail, citing the deprivation, abridgment,or restriction of any rights that one is entitled tounder the law, as justifying prosecution. Groupdefamation provisions like the federal Canadianone, where the promotion of hatred against anyspecific minority (regardless of whether or notthis leads to a breach of the peace) is anindictable offence, make prosecution obligatoryfor slander and insult, as well as for any moredirect threats. There is even provision for officialaction where no complaint as such has beenlaid.(15)

the intent

It is a moot point whether the act of incitement(however defined), and likewise any effects itmight have, should or should not have been"intended" for it to constitute a crime. TheCanadian Criminal Code includes bothcontingencies. The breach of the peace clause inthat Code makes no mention of whether or notincitement is meant, but the following sub-section describes group defamation in terms ofit having been "wilfully" promoted. This wasthe subject of much discussion in the case ofBuzzanga and Durocher, (16) where it wasfound that proof of intention to promote hatredwas essential at law for any act to constitute anoffence, and furthermore, that this was a verydifficult thing to establish. How does onedistinguish, for example, between the deliberateand the merely reckless. British Columbia'sCivil Rights Protection Act prohibits any actthat has, "as its purpose", interference withone's civil rights, which presumably does requirethe need to prove intent for a prosecution tosucceed. The incitement clause of the first U.K.Race Relations Act of 1965 also requiredevidence of a desire to create hatred, though this


came under some criticism at the time and LordScarman, in his report on the Red Lion Squaredisturbances, saw it as too tight a restriction. Itwas subsequently dropped, and the British onlyask at present for proof of the likelihood ofracial hatred as a consequence of the act ofincitement, and nothing more.

Following Britain's experience, it does seem tobe an undue complication to have to establish"intent". While it would hardly be fair to beheld to account for the results of one's acts onemay not have meant, the need remains toconsider in advance the consequences of whatone does. Eliminating "intent" makes suchconsideration all-important. It has proved toodifficult in practice to work in a decentsafeguard in this respect without rendering thewhole of an anti-incitement law inoperative.

Without a mens rea many would consider suchlegislation preposterous, though there has beenno instance since the British dropped "intent"of their government exploiting it inundemocratic ways. Whether the chroniccharacter of the underlying problem and thepressing need to do something about it is wellserved by provisions that seek out someone to"blame" in this way, is another moot point.

defences

It is generally held that there is little excuse in ademocracy for behaviour that threatens thepublic peace. If one considers inciting racial"hatred" to constitute such a threat, then therewould appear little excuse for that either. Racial"disharmony" is more problematic since the linkbetween it and public disorder is said to beharder to establish, and legislating againstlanguage and behaviour of this sort is morefraught with risks to free speech. While onemight perhaps want to exclude scientificdiscourse (as the Dutch do), or matters ofhistory or contemporary affairs (like theGermans - though this is getting very generaland likely in practice to allow almost anything),or judicial or parliamentary reports (like theBritish), the serious nature of the problemwould suggest little room for excuses except

where (as the U.K. law allows) those involvedhappen to be demonstrably ignorant of thecontents of the matter in question, with noreason to believe it to be suspect.

The issue becomes very tricky indeed whereracial incitement shades into group defamation.It would restrict free expression too much, it isfelt, to have the same provisions as apply in thecase of individuals. Hence the Canadiansspecifically exempt statements that a defendantcan either establish as true, or can say weremade either on a religious subject, or arerelevant to any subject of public interest thediscussion of which appears to be of publicbenefit (and which the discussant believes, onreasonable grounds, to be true), or involvessomething which he or she has pointed out, ingood faith, as fit to be "removed".

Now, while these are all quite proper defences offreedom of expression, they also make the sub-section a waste of time since such acomprehensive range of reasons precludes inpractice the possibility of successful prosecution.To resolve this dilemma we would have to resistcasting it in terms of a trade-off betweenfreedom of speech and public order. We wouldhave to view it instead as an issue wherefreedom of speech confronts freedom ofopportunity. Construed in this way it still makessense to safeguard democratic expression, butnot by citing such a comprehensive catalogue ofexcuses. Group defamation laws, particularlythose that allow of class actions, may wellprovide a much needed avenue of recourseagainst the more insidious and invidious formsof "racial" incitement; but there would be nopoint, regardless of the position one takes onthe issue of freedom of expression, in passingham-strung legislation that is bound to fail.

sanctions

Incitement to racial hatred is serious, and wheredefined as a crime it is treated as such. Sincejurisdictions differ in what they consider"serious" to mean, and how much money ortime in gaol an offence might merit, it has cometo depend on the local milieu what gets decided


in this respect. Belgium doubles the punishmentfor civil servants for example, while the Frenchrequire the guilty party to publish the courtopinion, thus disseminating such decisions aswidely, if not more so, than the originalmaterial. The Canadian law also makes itpossible, once there has been a conviction, toimpound "anything by means of or in relationto which the offence was committed". Despitefears of this being used to censor undesiredpolitical opinions, nothing of the sort hashappened since it was first brought in nor is itlikely to in the normal course of events.Legitimate debate continues in Canadaunimpeded, and any fears of this sort have so farproved groundless.

Conclusion

The empirical evidence to hand does not allowof any uncompromising conclusions. Onoverseas experience, legislation looks to havebeen both a legitimate and beneficial responseto have made to incitement to racial hatred.Those countries who have passed it havemanaged thereby to make an unequivocalstatement of what they find acceptable in thisregard, and they have equipped themselves withbackstop powers with which to confront andcontrol inflammatory defamation and otherfanatical activities should these ever get out ofhand. Freedom of expression does not appear tohave suffered undue interference. On the otherhand, it is not altogether clear that the countrieswhich do not have such legislation experiencesignificantly more, or more serious, expressionsof racial hatred. Each country needs to reach itsown conclusions based on its own experience.

Racial hatred is manifest in petty prejudice,biased institutions, and the work of diverseorganisations both large and small.

Petty prejudice, from foreign examples, is bestmet by providing adequate conciliation and/ormediation procedures, publicising theirpresence, and educating potential and actualvictims in their use. Otherwise, inculcatingtolerance is part of the larger process ofreproducing a civilised community.

Institutional racism can be counteracted bymeasures designed to ensure equality ofopportunity, by positive discrimination whereappropriate, and public awareness campaigns tobring to the attention of all concerned both theexistence of this form of incitement, and itspervasive consequences.

The control of racist organisations - whether ofthe small extremist variety, or whether large andmainstream - may call for all the above, anddepending on one's premises, for support forlegislation of a more pointed sort passing lawsagainst racist statements and behaviour mayprevent larger organisations from acting, orfrom perpetuating their opinions in this way;more extremist groups can be relegated to thesocio-political fringe by provisions that prohibittheir meeting or their capacity to publish andspeak. This, however, returns one to the issuesbroached above under freedom of expressionand to one's general understanding ofdemocratic theory and practice. Which meansin the end taking some kind of decision aboutthe desirability or otherwise of the sort offreedom that ensures a fair go.(17)


Reference Notes

1. R. Lewontin, "The Apportionment of HumanDiversity" in T. Dobzhansky et.al., eds.,Evolutionary Biology (Appleton-Century-Crofts,New York, 1972), v.6, p. 381.

2. B. Ginsburg and W. Laughlin, "The Distribution ofGenetic Differences in Behavioural Potential in theHuman Species" in M. Mead et.al., eds., Science andConcept of Race (Columbia University Press, NewYork, 1968), p. 34.

3. M. Douglas, Purity and Danger: an analysis of con-cepts of pollution and taboo (Routledge and KeganPaul, 1978)

4. For a more comprehensive account, see OccasionalPaper No.2, Incitement to Racial Hatred: theInternational Experience. Copies are available onapplication to the Commission, P.O. Box 629,Canberra City, A.C.T. 2601.

5. 343 U.S. (1952), pp. 250-305.6. Lord Scarman, Cmnd. 8427 ("The Brixton

Disorders, 10-12 April 1981") p. 136, quoting anaddress to the nation by President Johnson, U.S.Report of the National Advisory Commission onCivil Disorders (1968).

7. E. Campbell and H. Whitmore, Freedom inAustralia, Sydney University Press (1973) p. 13.

8. Report of the Special Committee on HatePropaganda in Canada, Ottawa, 1966, pp. 8-9, 24.

9. UN Economic and Social Council, Commission onHuman Rights, Report by the Secretary-General,E/CN.4/1i05 (14 November 1972) pp.45-46, 66-67.Also E. Littlejohn, "The Efficacy of Law inPromoting Social Change: for Lawyers", DetroitCollege of Law Review, 1976, pp.23-51; O.Schachter, "How effective are measures against racialdiscrimination" Human Rights Journal, V. 4., No.2-3 (1971), pp. 293-310.

10. M. Berger, Racial Equality and the Law, (UNESCO,1954), pp. 6-9. Also S. Cohen, "Hate Propaganda -the Amendments to the Criminal Code", McGillLaw Journal, v.17, no. 4, pp.785-791.

11. See, however, the comprehensive and basically sym-pathetic statement of the arguments of both propo-nents and opponents in the Law ReformCommission's Discussion Paper No. 11 "Access tothe Courts - II, Class Actions" (June 1979).

12. A. Dummett, A Portrait of English Racism (Penguin,1973), pp. 73, 70.

13. Lord Parker's judgement in the well-known case ofJordan v.Burgoyne, 2 All E.R. (19631 P. 227. Thisdoes however allow at least the possibility of a "heckler’s veto”

14. See, for example, Cmnd. 6234 "RacialDiscrimination" (1975) p. 31.

15. K. Rivett, "Legislation on Racial Threats and Insults:a submission to the Legal Committee of theInformal.

16. Regina v. Buzzanga and Durocher, 49 C.C.C. (2d),pp.36 9-390.

17. See Appendix I.

Appendix I

The original draft of the Racial DiscriminationBill 1975 contained anti-incitement provisions.These would have made it unlawful to publishand distribute written matter or to broadcast bymeans of radio or television or to utter in anypublic place or meeting written or spokenmatter intended to promote ideas based on thealleged superiority of persons of a particularrace, colour, nationality or ethnic group, or topromote hatred or hostility or ill-will towardthem, or to bring them into ridicule orcontempt.

The failure of this Commonwealth initiative hasnot deterred State administrations fromconsidering the issue. The latest example is theproposal by the Anti-Discrimination Board inSydney to amend the N.S.W. Anti-Discrimination Act to make it unlawful to inciteracial disharmony or violence.

Victims of racial disharmony have formed a"significant proportion of the complaints on thegrounds of race taken to the Counsellor forEqual Opportunity" in New South Wales, asdiscussed in her report for the year 1980-81.Given this and other such evidence, the lawcommittee of a Race Relations ConsultativeGroup, originally convened by the Anti-Discrimination Board, drafted a detailedsubmission to service what seemed to beemerging as a clear communal need. This hasmet with considerable approval from ethnic andAboriginal groups.


Particular care was taken to safeguard freedomof speech, and not to eschew the significance ofcommunity education (to which intractableracists would be immune anyway).

The detailed proposals would make it unlawfulpublicly to incite violence, hatred or contemptof a person (groups are not covered) or topublish material to any of. these ends, on thegrounds of race, including colour, nationality,ethnic or national origin. They do not coverinsults. Those aggrieved would be able to makea complaint to the Counsellor for EqualOpportunity, and if not satisfied after aninvestigation and attempt at conciliation (or theCounsellor considered it appropriate for otherreasons), would be referred to the EqualOpportunity Tribunal for an Inquiry. TheTribunal could, as needs be, grant an injunction,call for a published apology or other suchretraction, and otherwise act to remedy thesituation, with power to fine or imprison thosewho did not comply.

The evidentiary requirement would be toestablish the facts at issue on the balance ofprobabilities - the criminal standard of proof isnot envisaged.

A respondent would have available a number ofdefences, such as the private nature of theputative offence, its non-racial or non,incitement character, the fact that the event orthe matter complained of constituted faircomment on a matter of public interest, or thatthe individual accused knew nothing of thecontents of the offending material, e.g. apostman, or was engaged in a program oflegitimate education or research.


Documents

Incitement to Racial Hatred: Issues and Analysis · Incitement to Racial Hatred The concept of incitement to racial hatred is self-explanatory. Some of the means used have been cited