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