Religious vilification: confused policy, unsound principle and unfortunate law

University of Queensland Law Journal, Dec, 2007 by Rex Tauati Ahdar

The argument that vilification can indirectly contribute to discrimination, abuse or even violence is a more difficult charge to dismiss. (22) If insulting and contemptuous words or written material feed the animosity of those who might later express that hatred in criminal conduct, then logic does suggest it might be prudent to nip this pernicious process in the bud. But the linkage here is indirect, conjectural and rather diffuse. Some sorts of disparaging or inflammatory speech may provoke improper conduct in some hearers in some circumstances. The American experience is instructive here. In refusing to uphold hate speech bans, the US Supreme Court has 'resoundingly repudiated' the so-called 'bad tendency' rationale for suppressing controversial speech. (23)

   To be restricted consistent with the 'clear-and-present-danger'
   principle, speech must clearly pose an imminent danger, not just a
   more speculative, attenuated connection to potential future harm.
   Allowing speech to be curtailed on the ground that it might
   indirectly lead to possible harm sometime in the future would
   inevitably unravel free speech protection. After all, any speech
   might lead to potential danger at some future point. Therefore, if
   we banned the expression of all ideas that might induce individuals
   to take action that could endanger important interests, such as
   public safety, scarcely any idea would be safe, and surely no idea
   that challenged the status quo would be. (24)

Furthermore, can the state and its courts be confident in accurately identifying which kinds of religious speech in which circumstances are deleterious? We ought to be slow to ban all potentially provocative speech on the chance that some of it may produce anti-social behaviour.

IV ARGUMENTS AGAINST RELIGIOUS VILIFICATION LAWS

A The Chilling Effect

Religious hatred laws may have a 'chilling effect' on religious speech. (25) Various forms of teaching, evangelism and proselytism that include robust criticism or denunciation of other faiths become a dangerous exercise. Such forceful speech may now be construed by the secular authorities as nothing less that an illegitimate instance of religious vilification. The prudent course then is to exercise self-censorship: dilute the message or perhaps abandon the speech altogether.

The risk of expensive and protracted litigation is heightened by the vagueness of the law. Precisely at what point do we move from strong, even hostile, criticism of religion to attempts to stir up hatred of believers in that religion? No doubt there is a sort of continuum of religious offensiveness from, at one end, the most mild and irksome upset to others to, at the other extreme, the blatant incitement to violence towards peoples of particular faiths. Precisely at what point along the continuum one violates the law is very difficult to know. In advance it is unknowable and certainly no-one wishes to be the 'guinea pig', so to speak, that sets down the initial marker. Yet even after several cases have been decided, the precedents may still provide scant guidance. Attempts by the legislature to clarify the boundary really just re-state the issue. For example, the UK's Racial and Religious Hatred Act 2006 contains section 29J, entitled 'Protection of freedom of expression.' It reads: