The Effects of Civil Hate Speech Laws: Lessons from Australia

• Date: 01 September 2015
• Published date: 01 September 2015
• DOI: http://doi.org/10.1111/lasr.12152

The Effects of Civil Hate Speech Laws: Lessons

from Australia

Katharine Gelber Luke McNamara

This article examines the effects of hate speech laws in Australia. Triangulat-

ing data from primary and secondary sources, we examine five hypothesized

effects: whether the laws provide a remedy to targets of hate speech, encour-

age more respectful speech, have an educative or symbolic effect, have a chill-

ing effect, or create “martyrs.” We find the laws provide a limited remedy in

the complaints mechanisms, provide a framework for direct community advo-

cacy, and that knowledge of the laws exists in public discourse. However, the

complaints mechanism imposes a significant enforcement burden on targeted

communities, who still regularly experience hate speech. We find a reduction

in the expression of prejudice in mediated outlets, but not on the street. We

find no evidence of a chilling effect and we find the risk of free speech martyrs

to be marginal. We draw out the implications of these findings for other

countries.

Introduction

This article seeks to make a contribution to international

debate about the legitimacy and efficacy of hate speech laws, by

examining the effects of hate speech laws in practice. Hate speech

is condemned in the International Covenant on Civil and Political

Rights (Art. 19) and the International Convention on the Elimi-

nation of All Forms of Racial Discrimination (Art. 4). These

injunctions have been operationalized in many countries, and

studies have been conducted into the operation of hate speech

laws in countries including Canada (McNamara 2005a, 2005b;

McNamara 2007: 187–208; Sumner 2009), the United Kingdom

(McNamara 2007: 167–86; Williams 2009), France (Mbongo

2009; Suk 2012), Hungary (Molnar 2009), and Germany (Grimm

We acknowledge funding from the Australian Research Council (DP1096721), and eth-

ical clearance from the Univ. of Queensland (2011000341). We thank Jess Todhunter,

Dave Eden, Sorcha Tormey and Ellyse Fenton for research assistance, and acknowledge

the important work undertaken by Cultural and Indigenous Research Centre Australia

(CIRCA). We are grateful also for the assistance of the relevant authorities and community

organizations from whom we obtained data. Please direct all correspondence to Katharine

Gelber, School of Political Science and International Studies, University of Queensland,

Brisbane, Queensland; e-mail: k.gelber@uq.edu.au.

Law & Society Review, Volume 49, Number 3 (2015)

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C2015 Law and Society Association. All rights reserved.

631

2009). In the United States hate speech laws do not exist due to

the protections afforded speech by the First Amendment (Hey-

man 2009; Weinstein 1999), however, there is an excellent litera-

ture examining the enforcement of hate crime laws that punish

bias-motivated crimes (e.g., Jacobs and Potter 1998; Jenness and

Grattet 2001; Lawrence 1999; Savelsberg and King 2005, 2011).

There have also been numerous philosophical contributions to

this field, which have focussed, for example, on the ways in which

hate speech can harm (Maitra and McGowan 2012a, 2012b; Wal-

dron 2012) or on debates for or against hate speech laws (e.g.,

Brown 2015; Heinze and Phillipson 2014).

Since the enactment of the first hate speech legislation in Aus-

tralia in 1989, research has focussed on their compatibility with

free speech principles (Flahvin 1995; Gelber 2002; Gelber and

Stone eds. 2007a; McNamara 2002) or the Constitution (Aroney

2006; Chesterman 2000; Meagher 2005). Research has also eval-

uated how the laws are applied and interpreted (Chapman 2004;

Chesterman 2000; Gelber 2000; McNamara 1997; Meagher

2004; Thampapillai 2010) or case studies (Hennessy and Smith

1994; Jessup 2001; McNamara 1998). This article aims to update

this literature by presenting the findings from a large, new study

into the impact of hate speech laws on public discourse in Aus-

tralia, from the enactment of the first hate speech laws in New

South Wales in 1989 to 2010.

We investigate the ways in which legislation might have

affected public discourse over time. We note that legislation in

Australia is drafted differently in different jurisdictions (see

below). This means there is no single legal definition of hate

speech in Australia. Further, we were concerned to assess the reg-

ulatory system’s effects on speech that may stylistically not be

challengeable under extant laws, but that nevertheless discur-

sively enacts discrimination or marginalization. We, therefore, use

the term “hate speech” to mean expression that is capable of

inciting prejudice toward, or effecting marginalization of, a per-

son or group of people on a specified ground (adapted from

Gelber and Stone 2007b: xii). We use it interchangeably with

“vilification,” the latter being used in the Australian regulatory

framework.

Our task is methodologically challenging, for connecting

changes in public discourse to the introduction or enforcement of

hate speech laws is fraught with difficulty. We take a measured

and careful approach where we make claims about the likely

influence of hate speech laws on public discourse. We also

acknowledge the need for caution in extrapolating our conclu-

sions about Australia’s regulatory scheme to other jurisdictions

where different models of hate speech laws have been enacted,

632 Effects of hate speech laws

and to the United States, where the First Amendment precludes

the statutory prohibition of hate speech. Nonetheless, we believe

a number of our findings have wider implications. These include

our insights about the possibility for instrumental and symbolic

benefits even in the absence of punitive sanctions for norm viola-

tion, and our reservations about the “uneven” protection

afforded by regulatory regimes that adopt a civil justice model,

where status as a “victim” is a precondition to commencing pro-

ceedings, and where the material conditions and organizational

capacity of communities targeted by hate speech can seriously

impact on their opportunity to access the law’s protection.

This research project triangulated data from a range of pri-

mary and secondary sources, to investigate the relationship

between hate speech laws and public discourse over time. Sources

include complaints data from, and interviews with, federal and

state/territory human rights authorities; tribunal and court deci-

sions; qualitative document analysis of letters to the editor pub-

lished in newspapers; data from community organizations

regarding their members’ experiences; and interviews conducted

with 101 members and representatives of target communities.

These latter interviews were conducted on our behalf by Cultural

and Indigenous Research Centre Australia (CIRCA). A total of 55

qualitative, semistructured, in-depth, paired (46) and individual

(9) interviews were conducted in urban (41), regional (6), and

remote (8) areas.

1

Interviews were conducted with the following

groups: Aboriginal and Torres Strait Islander, Afghani,

Australian-born Arabic-speaking Muslim, Australian-born Arabic-

speaking Christian, Chinese, Indian, Jewish, Lebanese-born

Christian, Lebanese-born Muslim, Sudanese, Turkish Alevi,

Turkish Muslim, and Vietnamese. The authors also conducted

qualitative, semistructured, in-depth interviews with newspaper

editors, and lawyers involved in vilification cases. Interviews were

conducted under conditions of confidentiality, therefore, no iden-

tifying information is provided for interviewees except where

they gave us express permission to do so. In each subsection of

this article, we provide further information about the method uti-

lised for that component of the data collection.

Australian Hate Speech Laws

Australia is a federation with six states and two self-governing

Territories. All jurisdictions except the Northern Territory have

1

Where necessary, interviews were conducted in a language other than English, and

English-language transcripts were provided to the authors.

Gelber & McNamara 633