JavaScript disabled. Please enable JavaScript to use My News, My Clippings, My Comments and user settings.

If you have trouble accessing our login form below, you can go to our login page.

If you have trouble accessing our login form below, you can go to our login page.

US response to NBA bigotry proves the value of power

Date

Tim Soutphommasane

Controversial: Los Angeles Clippers owner Donald Sterling.

Controversial: Los Angeles Clippers owner Donald Sterling. Photo: AFP

It may be happening in the US, but the NBA race controversy involving LA Clippers owner Donald Sterling has some resonance for Australians. As debate continues about the Federal Government’s proposed amendments to the Racial Discrimination Act, it is worth asking in what ways must a society counter bigotry and racism?

Last week, a leaked recording revealed Sterling had told his girlfriend not to associate with black people or to bring black people to his team’s games. The NBA responded in the most dramatic way possible. In a widely applauded move, the NBA’s commissioner banned Sterling from the competition for life.

As a spokesman for NBA players said, ''I hope that every bigot in this country sees what happened to Mr Sterling and recognises that if he can fall, so can you.''

Here some people say this demonstrates that racism is best fought by a self-regulating civil society. For supporters of the proposed repeal of section 18C of the RDA, the Sterling incident confirms that we should be combating racist speech with ''good speech'', and not with legal instruments.

It is true that fighting racism can never be as simple as legislating away bigotry. Fighting it also requires education and argument, and for attitudes and behaviour to change good citizens must be prepared to stand up and speak out.

But it is wrong to believe that is all that is needed. The weapon of speech can only really do the job when it is accompanied by power - the circumstances count and the position of the speaker matters.

Of course it matters that Sterling’s comments were leaked during the NBA’s playoff season. And, as about three-quarters of the NBA’s players are African-American it meant  their outrage ensured Sterling would find it difficult to survive – particularly if they resort to a protest strike en masse.  This episode is exceptional rather than representative, and for every instance of ''people power'' triumphing against racism, there are many other instances of failure.

Unfortunately, not every person or group speaking out against racism has the backing and influence of the NBA’s millionaire stars. As the American commentator E. J. Dionne  asked: ''How do we act when the playoffs are over and the people who are protesting are not the heroes whose numbers we proudly wear on our backs?''

Power is one issue frequently missed in our debate about vilification laws. Some libertarians assume that those who are on the receiving end of racial abuse can simply speak back. This sounds easy ifyou occupy a position of social privilege and have never felt the distinctive wound of racial vilification. But punching up at one’s opponents is much harder than punching down and the young Aboriginal person or the newly arrived immigrant with imperfect English may find it much tougher to find their voice when they are being attacked. The experience of racism often silences its targets making them unable to exercise their freedom of speech.

Our law plays an important role in empowering those who experience racial discrimination. When it concerns public acts of vilification, the RDA provides a civil and educative remedy. It ensures  we can hold people accountable for acts that offend, insult, humiliate or intimidate  on racial grounds.

Contrary to much commentary, you can’t be “prosecuted” or “convicted” under the law. When a complaint is made, it triggers a conciliation process in the Australian Human Rights Commission aimed at getting people to talk through their problems. The process has resolved hundreds of complaints since it has been in place. Only a very few end up in court (just five out of 192 complaints about racial vilification in 2012-13).

The law also expresses our social values. A recent Fairfax-Nielsen poll showed that 88 per cent of people  support the legislation in its current form. If we are committed to racial tolerance and a multicultural Australia, we should be prepared to maintain laws that set a standard for civility and decency.

Moreover, if countering racism requires a broader social response, let’s not forget that the law shapes our social norms.  It often precedes and guides the creation of sentiments. We shouldn’t, as legal philosopher Martha Nussbaum says, “wait until most people love each other before we protect the civil rights of the vulnerable”.

If we are to draw lessons from the US, we must draw the correct ones. They are less about ''people power'', and more about what happens when leaders of organisations and society broadcast a powerful message about racism.

The NBA has shown no equivocation about a right to bigotry. There has only been an emphatic statement that bigotry shouldn’t be tolerated. We can all learn from this demonstration of leadership.

Dr Tim Soutphommasane is Australia’s Race Discrimination Commissioner. He tweets @timsout

13 comments

  • Hi Tim, I agree with all you say, but I wonder about people like Stirling - a powerful public figure who expressed his racism and bigotry in private. As such it was surely a matter of domestic abuse, rather than vilification of African Americans.

    Had his phone not been hacked, or his private conversations otherwise recorded, then no one but his girlfriend and her immediate friends would have been harmed.

    I am not arguing that people should be allowed to be bigots in private but not in public, but I consider Peter Slipper whose flirtations comments to Ashby were never meant to be published and that were used by Abbott and Bishop to argue that he was not fit for public office.

    Offensive comments made for publication or broadcasting should be considered more offensive than those made between consenting adults in private.

    Commenter
    Ross
    Location
    MALLABULA
    Date and time
    May 05, 2014, 7:53AM
    • Ross, well, we all have to conform Ross, this is the new state religion, I suppose it makes Tim one of the high priests of the cult.

      O' Hail social correctness, we all bow to down to thee!

      Commenter
      SteveH.
      Date and time
      May 05, 2014, 9:09AM
    • Ross the comments were made in private so yes, Mr Sterling’s privacy has been violated and that should be addressed. I would expect that the personal that violated Mr Sterling’s privacy might find themselves on the wrong end of a civil suit. However, once the comments were in the public domain the NBA had to act for the good reputation of the organisation, particularly once Sterling had acknowledged that it was his voice on the recording.

      Commenter
      wonk_arama
      Date and time
      May 05, 2014, 11:47AM
    • And SteveH; any reference to thought control or ‘correctness’ in this debate is boring, as well as being an incorrect argument in fact.

      Section 18C of the RDA as it's currently written specifically excludes an act made ‘in private’. If your intention was not to ‘cause’ the act to be ‘communicated to the public’ you can think, say, and do whatever you like. You might be embarrassed if the words used got out in the public domain but unless you were intending to spread the word as it were, you’d be safe.

      Commenter
      wonk_arama
      Date and time
      May 05, 2014, 11:49AM
    • hi SteveH - your comment makes no sense and does not address either Tim's article, nor my comment.

      No one is asking any one to conform, just not to be abrasive. Not a big ask really.

      Commenter
      Ross
      Location
      MALLABULA
      Date and time
      May 05, 2014, 2:11PM
  • Yep, power really matters;it seems that Sterling's using his power and authority to intimidate and vilify.

    My friends used to talk about powerless victims in law showing 'compliant concurrence' when, say, a snotty nosed naughty Aboriginal kid suffering glue ear submits to being barked at by inflated charges in the face of suits, wigs and mahogany cornices.

    We need more, not less civility and decency; hearing and acting on our esteemed leaders' dog whistling doesn't require good hearing - just bigotry which I'm worried can increase.

    Commenter
    batch
    Location
    Yamba
    Date and time
    May 05, 2014, 8:30AM
    • All this case proves is that all encompassing legislation involving emotive language and reverse onus ( "offend' in particular) is not required to control free speech because there are many other ways, including general public disgust and opprobrium, to deal with and control extreme views publicly expressed.

      Commenter
      The Beak
      Date and time
      May 05, 2014, 9:02AM
      • You are missing a key point in the article; racism is a means for the majority to silence the minority. The minority by definition does not have a equal voice to the majority and so their response will be muted, twisted, or simply drowned out.

        Please understand I'm not saying that a minority cannot be racist against a majority, of course they can but as a minority the ability to give effect to their racism is far limited compared with what the majority can do with their racism.

        Commenter
        wonk_arama
        Date and time
        May 05, 2014, 11:58AM
    • I can't but help think Tim has argued against himself here. The publication (ill gotten or not) of socially unacceptable comment has the backlash that turning the bigot into a martyr for the Right through prosecution would not. Let's talk and appeal to people's sense of right and wrong and have the bigots hung out to dry in the court of public opinion. The chipping away of the right to be a bigot or a Christian or even a basket weaving Chardonnay sipping leftie from Balmain has a compounding potential that this incident shows is not necessary.

      Commenter
      Slug
      Date and time
      May 05, 2014, 9:11AM
      • One irony is that all of the African- American players were well taken care of and compensated appropriately. Sterling is an enigma and has dysfunctional thought processes.

        A swift legal response and resolution to this is going to be almost impossible because he will be able to cite freedom of speech, show he was a fair owner re: compensation etc, and with those confounding issues, there may be years of counter suits before he is ousted.

        A better method to have resolved this would have been to boycott all Clipper games and/or have the team resign. Bankruptcy is a big stick!

        Commenter
        Robin Willcourt
        Date and time
        May 05, 2014, 9:59AM

        More comments

        Comments are now closed
        Featured advertisers