The Government Is Working On Anti-Hate Laws. Here Are Four Items They Must Include

In May the federal government announced it was making progress on the creation of new legislation to ban hatred speech, often referred to as “vilification” based on sexual gender, sexuality, race, or religion.

Many have been ecstatic about the idea to strengthen laws to combat the hateful speech of Jewish, Palestinian and Muslim communities following increasing antisemitism and Islamophobia within Australia.

A lot of people believe that the freedom of speech is not without limitations, and the law has certain responsibilities in preventing damaging speech. What should the laws be like? Here are four issues that need to be considered in the law.

1. Protection For Certain Characteristics

Generally, hate speech may be viewed as an unwholesome speech or behavior that targets a person or an entire community based on the person they are. Some people are targeted for inexplicably identifiable characteristics like their gender, sex or sexual orientation, religion or race or if they suffer from disabilities or HIV. Research conducted by the eSafety Commissioner has shown that hatred speech based on these attributes is on the rise and is especially prevalent on the internet.

The issue of hate speech doesn’t happen in the absence of others. It is a result of social and political discrimination of communities that are marginalized. As the number of hateful words increases the likelihood of the violence and discrimination against groups that are vulnerable.

For instance, my research found that women are often victimized by hatred speech. One participant reported receiving sexual assault messages that described her in explicit details. In the same way, gendered hate speech, as in this one, is often used to intimidate women and suppress their voices in public places. The use of hate speech against women is also believed to be a factor in the violence against women.

The reason is that new laws must ban hate speech against a variety of diverse characteristics, and not simply be focused on one group.

2. Protection For Multiple Risk Factors

If someone uses hate speech to hurt an individual or a number of individuals, typically they do not just target the person for a particular characteristic or another, but because they intersect with several traits. This is referred to by the term “intersectionality” an idea that was first developed by Professor Kimberle Crenshaw. It states that people with several characteristics often face violence and discrimination more frequently and are more severely.

The experiences also extend to hate speech. The ESafety Commissioner has discovered that LGBTIQplus or First Nations people experienced online hate speech twice as often as the average for all Americans. LGBTIQ+ women have more likely than heterosexual females to be subjected to online gender and sexual orientation-based harassment. The women of color are at a higher risk to receive harassment from anonymous internet users.

In my research, I found that a participant shared her experience of hatred speech as an Muslim woman:

I am black and Muslim. This makes me an ethnic minority. […] It can be difficult to separate the gendered aspects and the different aspects of it, which is the one that is racist and xenophobic. […] that are interspersed. For instance, when I’m asked, “Get back in the kitchen and make me a ham sandwich”.

This is the reason why it is necessary for the law to ban hatred speech that is a result or because of “one or more” protected characteristics.

3. Civil And Criminal Penalties

The announcement by the federal government indicates that new laws against hate speech will carry the possibility of civil and not just criminal sanctions. The new laws will only be targeted at deliberate acts designed to inspire the violence of others or create harm. New laws for criminals will convey a clear signal to the community that hate speech isn’t acceptable.

However, the history of prosecutions for lawful hate speech in the criminal justice system isn’t very good. For instance, in Victoria there was more than 2 decades to get anyone charged for serious vilification in the Racial and Religious Tolerance Act.

The current laws on sedition included in the Commonwealth criminal code, possible mentioned by some commentators however, are unlikely to yield better results for those communities that are that are targeted through hateful speech. Instead, these modifications are more likely to cause confusion as these laws were initially introduced to combat terror.

To ensure that the law against hate speech is effective civil penalties are required. Civil laws are in place at the federal level that prohibit discrimination based on race and these laws permit victims to lodge complaints and to participate in mediation. The statutes can be described as “harm-based”, meaning they contain actions that cause harm to the victim, as opposed to criminal laws, which focus on inciting violence. They take into consideration the viewpoint of the person who is being targeted in determining if a particular behavior constitutes hate speech.

The new laws that prohibit hatred speech must incorporate harm-based civil law that will regulate more actions and place the ability in the hands those who have been hurt to lodge complaints.

4. Protection From Backlash

In any attempt to restrict speech, regardless of whether it is harmful there is the possibility of a political and community reaction against these laws as well as complaints filed by the victims. This backlash could cause laws against hate speech being enacted in a way that is harmful or troubling.

The laws could be used against the very people they were designed to safeguard. There have been instances when complaints about discrimination against minorities have been filed specifically to weaken the legal safeguards. In 2016 a the former senator David Leyonhjelm made a complaint of racial vilification the Human Rights Commission as part of his ongoing attacks on a section of the Racial Discrimination Act.

The process of preventing backlash is a challenge and requires that the government be thoughtful about how laws are constructed. The goal of the new laws against hate speech to safeguard communities that are marginalized should be clearly laid up and comprehended by the people responsible for enforcing them.

It is also essential that for the public to be educated on the reasons why a restriction on speech is required in cases of harm to people from marginalised communities. A strong protection of speech that is legitimate for conduct, like that which is logical and aimed at legitimate academic or religious, artistic, scientific reasons or fair and accurate in its reporting of a matter in an interest for the general public, should become part of any proposed laws.

Making effective and strong laws to ban discrimination against people of a particular race on a federal scale could be difficult, but with the amount of money at the stake, it’s important to get the right way.