Archive | October, 2010

Hate Speech and Free Speech

8 Oct

In 2006, seven members of the far right-wing Westboro Baptist Church* undertook an anti-gay protest at the funeral of Albert Snyder’s son, who had died earlier that year serving in Iraq as a Lance Corporal for the US military. Mr Snyder filed a civil claim against the Church, after which he was variously awarded damages or had the matter dismissed, depending on the court. The case appeared today before the United States Supreme Court, where the First Amendment rights of the Church’s founder and pastor, Fred W. Phelps, Sr. will be put in opposition to Mr Snyder’s tortious claims. During the proceedings yesterday, judges hinted that although they disapproved of the actions of Mr Phelps and his posse, they would have little choice but to find in his favour.

Westboro Baptist Church Protesters

Meanwhile, some 6195 kilometres away in Amsterdam, the trial of controversial anti-Islam Dutch MP Geert Wilders has begun, wherein he is facing charges of inciting hatred and discrimination and giving religious offence to Muslims. Mr Wilders, who is the beneficiary of 24-hour police protection due to public anger at his populist policies, is liable to receive up to a year of incarceration or a €7.600 fine if convicted. Amongst other things, he has likened the Qur’an to Hitler’s Mein Kampf and described Islamic culture as “retarded”:

“I have had enough of Islam in the Netherlands: let there be no more Muslim immigrants. I have had enough of the worship of Allah and Mohammed in the Netherlands: let there be no more mosques. I have had enough of the Koran in the Netherlands: let us forbid that fascist book. Enough is enough.”

As a result of these views, his new role in the Dutch coalition government has led to it announcing plans to halve immigration and ban the burqa. Previous complaints in relation to his iconoclastic and racist statements have not gone to trial as the Netherlands also provides for freedom of speech in its constitution. As Mr Wilders declared:

“[I am] being prosecuted for believing there is something uniquely Dutch under attack that’s worthy of being preserved. The same could be said about that which is Italian, British, German, Spanish, Danish, Swedish, French or American. That [I face] trial for this belief shows [that] some aren’t willing to have this discussion, but all countries will face it eventually. Western tolerance shouldn’t be a suicide pact.”

Paradoxically, Mr Wilders has announced that he is exercising his right to silence during the proceedings, much to the annoyance of the trial judge, despite the fact that his case rests on his right to free speech.

Geert Wilders on trial

Each of these cases demonstrate a dilemma in the legal system of western countries. In endeavouring to protect the rights of the people, a legislative body must determine to what extent somebody’s right to free speech impinges on another’s right not to be the subject of speech that is clearly offensive or incites either hatred or violence. This was described by Rodney Smolla as “the most intractable and difficult problem in speech theory” in Free speech in an open society. Critics of hate speech law cite what John Stuart Mill called “the tyranny of the majority”, arguing that it is the opinions of the majority rather than purely objective views that are imposed on everybody. Mill argued in his treatise On Liberty that unorthodox ideas must be permitted in public discourse for the sake of debate, as without such ideas one could not ever conduct complete discussion. He claimed that individual expression was akin to thought in that it should be afforded special protection from government regulation.

In contrast to this, international agreements such as the International Convention on the Elimination of Racial Discrimination have induced hate speech statutes in many jurisdictions, although the presence of a right to freedom of expression in that Convention abated the extent to which these laws affected freedom of speech. The United Nations Human Rights Committee has made it clear that the right to free speech does not extend to “racial or religious hatred”. Although most developed countries have enacted hate speech laws, they are rarely in the constitution, Bill of Rights or similar law (including the Human Rights Act 1998 in the UK) whilst the right to freedom of expression is frequently included therein.

There is little doubt that the rights to free speech and not to be subject to hate speech are competing interests that must coexist for the sake of society. The means by which this is to be completed and the extent to which each right should exist is a problematic and ultimately a highly subjective one. Multiple countries, including Canada, provide that expression must intend to cause harm in order to qualify as hate speech, which is a more moderate approach than is employed by many other jurisdictions. The imbalance inherent in the fact that only South Africa has provided constitutional provisions relating to hate speech and how it relates to the right of free speech indicates that free speech is still considered a priority, perhaps due to its history as a right extending back to ancient Greece. Despite this, law around the world is gradually changing to reflect the developing view of societies that hate speech cannot be tolerated in modern and multicultural communities.

*Note the creative URL


Please Give

7 Oct

Please Give

Nicole Holofcener’s most recent film, Please Give, is a sharp and creative story of the interaction of a fascinating set of ordinary people. Kate (Catherine Keener) owns a vintage furniture shop with her husband Alex in which the couple sell items purchased from the nescient relatives of the recently deceased. Kate’s concerns about their business practices have increasingly tickled her conscience, which she partly mitigates with her admirable generosity. Her relationship with her daughter Abby, who is her mother’s antithesis in her materialist and less charitable nature, is tested by Abby’s declining self-esteem. The family’s neighbour is an invective and cantankerous nonagenarian cared for by her granddaughters — one a shy yet caring radiology technician, the other a shallow spa employee — whose apartment they own but cannot renovate until she dies.

Please Give

Please Give is essentially an exercise in character development; the wonderfully intricate characters intertwine with each other in the most fascinating manner with impressively dry and witty dialogue. This is accompanied with dynamic acting throughout the play — the most noteworthy performances given by Keener and Ann Guilbert, who plays the grandmother Andra. While Kate and Alex make their living off the dead, generating a profit from the furniture of the deceased and waiting for Andra to die in anticipation of her apartment, this fact consumes only the conscience of Kate and not Alex. The juxtaposition of the introverted and altruistic daughter with her apathetic, extroverted sister provides for a considerable amount of insightful conflict, and the diverse range of responses different characters have to the recalcitrant Abby, who is simultaneously self-absorbed yet critical of herself, offer deeper depictions of their nature.

Please Give

The largest failing of this film is its remarkable lack of substance. It is characters rather that plot that are the engine of this creation, and as a result some may find it disappointingly lacking. What little does happen that is of actual consequence is utterly predictable, but necessary to provide structure and purpose to the text. Despite this, the strength of the characters, acting and dialogue is enough to allow Please Give widespread critical acclaim that is wholly justified.

Three and a half stars


Prosecuting the Pope

5 Oct

The inaction of the Pope in relation to claims of sexual abuse of children by priests has enveloped the international media for some months. It has been established that the Pope and much of the hierarchy of the Catholic Church are complicit in the active concealment of cases of paedophilia in the clergy. A typical case of a priest abusing children would be resolved by the Church using canon law, which generally imposes no substantial punishment, and the perpetrator would be moved to a different parish. Local law enforcement agencies are neither informed of nor involved in the matter wherever possible, and the priest inevitably returns to repeated abuse once more after moving.

Geoffrey Robertson, QC, has remarked at Sydney’s Festival of Dangerous Ideas that some action must be taken by the international community, and that he does not regard the Vatican as a proper state. In contrast, the high-profile American criminal lawyer Alan Dershowitz argued that although the Church’s actions and inactions should be condemned, they are essentially misunderstood and the Church is developing an effective albeit inadequate response to the problem.

The Pope

The well-publicised views of Richard Dawkins and Christopher Hitchens that the International Criminal Court is a suitable mechanism by which to address the Pope’s actions have, at times, been shared by Mr Robertson. In April, The Guardian published his article “Put the Pope in the Dock“, the content of which does not explicitly call for prosecution of the Pope but justifies it. Despite this, Robertson explained how he did not think international criminal law should be used against the Pope on yesterday’s Q and A program:

TONY JONES: Geoffrey, I’m just going to interrupt you there and I’m going to bring you back to the point that Paul Kelly made because it does seem to me that you are the person in the world who is making the case the pope should be made accountable for crimes against humanity, as you put it in your article in The Guardian [emphasis added]. Do you believe the pope should be indicted for those crimes or not?


Mr Robertson appears to have changed his mind somewhat in this respect.

His debating opponent at the Festival, Alan Dershowitz, maintained his softer views of the actions of the Church, as he explained to Tony on the Lateline of September 30:

“I think Pope Benedict has probably done more to protect young children since becoming Pope than any previous Pope. It’s a very complicated matter and it has to be obviously seen in context. I don’t think it’s right for non-Catholics to get deeply involved in the governance of the Church. It relates to issues of separation of Church and State. I think it would be a terrible mistake to put the Pope on trial.”

No matter whether the Pope should be charged with crimes against humanity as Mr Robertson suggested in his book The Case of the Pope, the legal possibility of such an action is the subject of considerable doubt.

In relation to the question about whether the crimes allegedly committed by the Pope could be the subject of prosecution, Mr Dershowitz considers crimes against humanity to include only war crimes, as he explained on Lateline:

TONY JONES: Let’s start with his basic proposition that the widespread or systematic sexual abuse of children is a crime against humanity – that’s the way he puts it. And so, he says covering it up, incidentally, and protecting the perpetrators also amounts to a criminal offence. This is the basis of it, he says in international law.

ALAN DERSHOWITZ: Well he’s wrong. International law deals with war crimes, it deals with systematic efforts by governments to do what happened, for example, in the former Yugoslavia and Rwanda, in Darfur and Cambodia. This is not in any way related to that. And I think – I’m afraid to call this a war crime or some kind of international crime – it will water down the very important concept of crimes against humanity. This is not a crime against humanity, this is a series of crimes by individual priests and others throughout the world and failures by institutions to come to grips with it quickly enough. But it’s very different from systematic attempts to use rape or murder as a genocidal – part of a genocidal program.

Geoffrey Robertson, however, took a different view when asked if the Pope’s actions constituted crimes against humanity:

“Crimes against humanity can be committed in peacetime as well as in war. In Kenya at the moment we have the ICC investigating electoral violence. It’s been voted on. Australia voted in favour of making crimes against humanity committed in peacetime.”

Robertson is undoubtedly correct — crimes against humanity were deemed by the UN to have taken place in South Africa while apartheid policies were in place, and there was certainly no war. It is due to this fact that crimes it is alleged the Pope had committed could be prosecuted in the ICC. Although this is the case, these charges could not be brought against him as he is the Pope and therefore a head of state.

Mr Dershowitz is correct on the question of whether the Pope is entitled to legal immunity as a head of state. Mr Robertson’s argument here is:

“I don’t agree and Alan Dershowitz didn’t agree when we – he agreed with me that the Vatican is not a real state. It’s a palace with gardens. It’s as big as a golf course and it’s not a real state in international law. It has to have a permanent population. There are no Vaticanians. There are a few dozen celibate priests. No one gets born in the Vatican except by unfortunate accident. So it’s not a real state…”

Robertson has elsewhere expressed his belief that “the notion that statehood can be created by another country’s unilateral declaration is risible”. All modern states are formed either through unilateral assertions of independence (eg Kosovo, Belgium, Indonesia, the Netherlands and the United States) or — in the cases of more credible claims — by mutual agreement between the new state and its prior owner. Vatican City and Australia are examples of the latter. The Vatican signed a treaty with Italy that ensured its independence, and its statehood is recognised by the vast majority of the world’s countries, which is a vital component of being a legally legitimate country. The fact that Robertson has the capacity to compare it to a golf course has no bearing on its statehood. As a result of its status as a country, the Pope retains immunity from prosecution in the ICC, and the debate about possible legal action is utterly irrelevant. Nevertheless, individual priests could be charged for their crimes under civil law*, and could be extradited from their new parish if necessary.

Even if we could prosecute the Pope, would it help?

Vatican City

*By civil law, I mean the opposite of canon law and not what is also called public law.

Terrorism and the Global Financial Crisis

4 Oct

The notion that terrorism and 9/11 led to the Global Financial Crisis was conveyed at the Melbourne Writer’s Festival by author, journalist, economist and expert on terrorism financing Loretta Napoleoni. She divided the evolution of terrorism in the 20th century into three parts — state-sponsored terrorism, privatised terrorism and transnational terrorism — and claims that the economic behaviour of terrorists combined with the aggressive foreign, monetary and economic policy of the United States to bring the world’s economy to ruins. This post is a consolidation of the ideas she discussed at the Festival.

During the Cold War, the United States and the Soviet Union employed state-sponsored terrorism to further their ideological goals around each superpower’s sphere of influence, fighting wars by proxy in the third world and influencing regime changes in other countries wherever possible. The innate desire for the United States to affect the governance of states that are by no means under its jurisdiction continues to this day. The independent financing and operation of terrorist organisations, a concept pioneered by the PLO, replaced the state-sponsored model.

By the end of the 20th century, economic deregulation allowed for the globalisation of terrorist organisations such as al-Qaeda. With this terrorism model, attacks can be funded, coordinated and undertaken on a transnational basis, and coordination and cooperation between separate organisations becomes more propitious. The best example of this is the 9/11 attacks: the operation was funded in the Gulf, financially managed in Afghanistan and the attacks themselves took place in the United States.

The economic consequences of 9/11 were more expansive than are frequently acknowledged. This is the case at least in part to the Patriot Act 2001 (Imp), passed just weeks after the attacks, which extended government supervision of economic transactions. Terrorists’ actions are financed largely through the trade of drugs and arms. They previously used the United States as a venue for large-scale money laundering, which was economically beneficial for the US, but in response to the expanding powers of American regulators these activities were moved to Europe. Similarly, normal Muslims also repatriated their funds to the East or moved them to Europe in response to perceived discrimination that might have influenced how they conducted business in the light of the Patriot Act. As a result, Islamic banking was the only financial sector in the world that was not damaged by the Global Financial Crisis. More consequentially, however, the Euro began to rise in value and the US Dollar fell over the next six months. With a decrease in air travel, spending and investment in the United States, the country entered a small-scale domestic recession. To understand how this would eventually lead to the Global Financial Crisis we need to travel back eight years.

In 1993, as Secretary of Defense under the presidency of George H. W. Bush, Dick Cheney began to envision an expansion of American hegemony. This was furthered by the neoconservative think tank Project for the New American Century, which had the stated goal of “promot[ing] American global leadership”. 9/11 was the perfect justification for furthering his foreign policy goals, and so the invasions of Afghanistan and Iraq were immanent. To fund the wars, the United States sold government bonds on the international capital market. To allow these bonds to be competitive, interest rates had to be low; fortunately, Alan Greenspan lowered them at an alarming rate after 9/11 to counter the minor recession that ensued. As is expected when interest rates fall, however, Americans quickly bought a lot of property with large mortgages, the value of which began to fall after 2006 at which point interest rates had risen once more. At the same time, economic developments encouraged the debt owed on that property to be bought and sold as securities. The rest is history. The subprime mortgage crisis, together with multiple inchoate bubbles from the 1990’s that had their impact delayed by effective monetary policy, took hold and the Global Financial Crisis emerged.

The ramifications of the American response to 9/11 will remain with the international community for many years to come. There exists an anti-imperialist Islamic movement channeling the ideology of al-Qaeda, its unabated hatred of the West having been engendered by United States foreign policy in the Middle East since 9/11. This includes not only its invasions, but also its support for Israel despite the oppressive and illegal policies Israel enforces in the Occupied Territories. The most effective method by which to mitigate the ever-expanding influence of terrorist organisations would have been to inhibit their finances, but neither the Bush nor Obama administrations chose to do this. Instead, the world will live with the results of the heavy-handed approach taken by the United States for decades.

Let the Right One In

3 Oct

Film Still

Låt den rätte komma in (Let the Right One In) is a 2008 Swedish film by Tomas Alfredson, adapted from a book by John Ajvide Lindqvist. The film depicts the relationship between Oskar, a 12-year-old who is the victim of bullying at the hands of his classmates, and Eli, a vampire that is responsible for the gruesome murders taking place around their suburb in Stockholm. Although it comes at a time when Twilight et al have engendered the composition of myriad saccharine films and books that concern themselves with vampires, this wonderful creation is a distinct text worthy of far greater recognition.

Film Still

Oskar and Eli are purposeful and intricate characters. The pair, who develop a seraphic and romantic relationship, are united by their status as outsiders; as a vampire, the only relationship Eli has is banal and borne of expediency, while Oskar is ostracised from his social circle as a result of bullying. The pair also share a haunting affinity for violence. For Eli, murder is a physical necessity, while for Oskar it is a naïve, emotional fascination. Oskar collects newspaper clippings of murders and harbours a love of his knife, but his capacity for action is uncovered at Eli’s encouragement.

The most gruesome scenes of this film are intrinsically cold and still; Alfredson’s style is pleasingly bleak when contrasted to the overwrought excrement that is most of Hollywood. This manner is well suited to the beautiful yet eerie landscape that the story inhabits.

Film Still

Låt den rätte komma in is powerful and its images are haunting. A Hollywood remake has already been concocted from the fragile form of this film, which is an unfortunate addendum to its profound existence. As an exceptional film, the original is highly recommended, but certainly not for the standard Twilight audience.

Wild Rivers

1 Oct

Today the federal government announced a comprehensive parliamentary inquiry into the Wild Rivers Act 2005 (Qld) and whether it should be overturned by the Commonwealth. The legislation states:

The purpose of this Act is to preserve the natural values of rivers that have all, or almost all, of their natural values intact.

[by] providing for the regulation of particular activities and taking of natural resources in a wild river and its catchment to preserve the wild river’s natural values; and having a precautionary approach to minimise adverse effects on known natural values and reduce the possibility of adversely affecting poorly understood ecological functions; and treating a wild river and its catchment as a single entity, linking the condition of the river to the health of the catchment; and considering the effect of individual activities and taking of natural resources on a wild river’s natural values.

The Act is controversial because despite the fact that it is an environmentally beneficial law, it detracts from the ability of aboriginal peoples to enjoy the use of their land. Opponents of the Queensland Act claim that aboriginal custodians have successfully maintained the rivers in the past and that the Act is an offense to the concept of native title. As Wilderness Society spokesman Tim Seelig points out, however –

“The Wild Rivers Act does not stop all development. We have to be absolutely clear about what it does. It stops large-scale development like mining, like damming, like intensive irrigation in and very close to some of the most pristine rivers in the country.”

Land rights activist Noel Pearson takes a different view. He believes it imperative that we preserve the ancient traditional rights of Aboriginal peoples to use intensive irrigation techniques for large-scale agriculture, construction of high-density houses and open cut mining that allows minerals to be exported to China. These activities have been practised uninterrupted for millennia before the colonial hegemony that is Peter Beattie arrived to deprive them of these important rights.

Some people might suggest that Abbot is seeking to remove the Act because he’s in bed with the business lobby. And that he is using the cover of aboriginal rights to allow mining companies such as Cape Alumina and Rio Tinto to establish a bauxite mine near the Wenlock River (below). But that’s just cynical.

The Wenlock River

The question of whether or not the federal government should feel entitled to overrule Queensland’s legislation is one that has received little attention. With some legislation, such as that concerning euthanasia, it is logical for the federal government to impose its will on the states given how easily people could move between states to subject themselves to euthanasia. With matters such as stationary rivers, which are of no importance outside Queensland, justification of any action at a federal level becomes a feeble exercise. A question of whether a decision by federal Parliament to overrule the Act would be constitutionally permissible was raised in the earlier Senate inquiry.

While Abbott is demanding the issue be addressed immediately, the completion of the report commissioned by Gillard is a lengthy process that serves as an ingenious political manoeuvre. If a vote on the issue can be delayed until after the Greens hold the balance of power in the Senate, the passage of the bill is granted a guaranteed impediment. The Wild Rivers Act certainly has a future, and this fact is a welcome blessing for the environment.