Sticks and stones.

A very small victory for freedom of speech has been won up in Queensland, where a magistrate in Southport has ruled on the case of a man who sent a fax to a local politician in which he used the words 'nigger', 'sandnigger' and 'abo' to refer to people from Africa, the Middle East and, of course, indigenous Australians. I say it's only a very small victory for free speech because unfortunately the magistrate seems to have missed the point.

A SOUTHPORT magistrate has found the terms 'sandnigger' and 'nigger' are not offensive to a reasonable person.

Magistrate Michael O'Driscoll made the ruling yesterday when he dismissed a case against a Gold Coast retiree charged with sending an offensive facsimile to a local politician.

A staff member working for Broadwater MP Peta-Kaye Croft complained to police after receiving the document from 62-year-old Denis Mulheron of Labrador on June 30 last year.

Christie Turner, 28, told Southport Magistrates Court she was deeply offended when she read the one-page fax which called on the Labor Party to tighten immigration laws against 'niggers' and 'sandnigger terrorists' and Muslim women with circumcised genitals.

The fax also made reference to indigenous Australians as 'Abos'.

Okay, first things first, let's get the almost traditional issue of the ethnicity of the complainant out of the way - I'd bet money that Christie Turner is as white as I am simply because it's so often the case that when a white person is denounced as a racist/homophobe/sexist/Islamaphobe/kitten hater/whatever it's actually another white person doing the denouncing. For what it's worth I'm actually inclined to agree with Ms Turner that those words are offensive and so I wouldn't use them myself, but I wouldn't go this far:

Ms Turner said to her, as a young woman, Mr Mulheron's words were both offensive and disturbing.

What has her being a young woman got to do with it? I wouldn't be shocked if the old boy uses some distinctly chauvinist terms as well, but since the complaint relates to racial terms I don't see how her being a young woman has any bearing at all. Does she perhaps feel that being a young woman she is morally superior to an old man and is better qualified to judge offensiveness, and indeed to take offence on behalf of those¹ he has slighted? And if so when is she going to get around to complaining on my behalf that the term 'pom' is offensive to people born in England? Are we supposed to just man up and brave our way through it, or will she get round to it once she's worked her way down a list of assorted aggrieved groups? Or is it entirely up to us poms to decide whether or not to do anything about it? I'd go for this last one since I've never met an expat who's lost any sleep or feels at all hurt about being a pom, let alone one who needs some patronising banana bender² to fight their battles for them. And that's kind of the point. If we decide on behalf of other people whether or not they should take offence and then complain for them aren't we being rather patronising towards them? What if they are offended by this patronising attitude?

Okay, now we've got that out of the way let's move on to the real problem, and the reason why I think that for freedom of speech this is actually a much smaller victory than it sounds. The whole thing revolves around whether or not what Mr Mulheron wrote was offensive. Ms Turner (and me) thought it was. Mr Mulheron thought it wasn't, or at least that was his defence.

Mr Mulheron told the court he believed he was using 'everyday English' in the fax.

He said he had grown up with the slang terms for Arabs and black Africans and did not believe they were offensive.

"I'm not a member of the cafe, chardonnay and socialist set ... to me that is everyday language," he said.

...

Barrister Chris Rosser said his client had been raised in a different time when the words were not as frowned upon.

Okay, I'm sure some people would read that and think it's bullshit. I'm sure some would feel that in this day and age anyone and everyone in the English speaking world would be aware that 'nigger' with or without modifiers to indicate Arabic/Middle Eastern people is normally frowned upon, and I'm sure plenty in Australia would be a bit sceptical about his claim not to have realised that 'abo' is usually considered un-PC.³  On the other hand the guy is so deeply last century that he uses a fax. In any case that defence misses the point as widely as Ms Turner. And the magistrate:

After lengthy consideration, Mr O'Driscoll ruled that Mr Mulheron's words were not enough to invoke criminal sanctions.

"The words used were crude, unattractive and direct but were not offensive to a reasonable person," he said.

But he made it clear the court in no way condoned Mr Mulheron's comments.

And here's where I have problems. By ruling that certain words are or are not offensive 'to a reasonable person' courts are actually ruling on what opinions we may hold and still be considered reasonable. One man's meat is another's poison and it's quite possible for two reasonable people to disagree on whether a particular word is offensive or not and if so how much, which is probably why goldcoast.com.au wrote what Mulheron actually said while the Melbourne Herald Sun, which otherwise chose to rewrite the article almost verbatim, used 'n----r' and 'sandn----r'. But apparently this is not so in Queensland. Since up there the words are apparently 'not offensive to a reasonable person' the implication is that you are unreasonable if you think 'nigger' or 'abo' is offensive. Well, I appreciate the effort you've no doubt made in your decision, Mr O' Driscoll, but I prefer to make my own mind up, fuck you very much.

The other implication is arguably worse. Had Mulheron used a different term and the magistrate then ruled that some people - 'reasonable' ones, obviously - would find it offensive presumably he'd have been found guilty and faced a sentence of up to three years in jail. In other words it's still a crime to offend someone and you'll still be locked up for it if a court can be persuaded that 'reasonable' people would all agree that it was indeed offensive. What a lost opportunity! The courts still get to decide what can and can't be said, the politicians - oh yes, of course they were unhappy about the result - will want to change the law to make more things legally offensive and verboten, and people still aren't left to decide for themselves what they as individuals think is reasonable or offensive.

Did I say this was only a small victory for free speech? I'm no longer sure that it's even that good. In the sense that a man has not been imprisoned for speaking his mind it's certainly a victory, and Mulheron himself might not think it a small one. But for freedom of speech, freedom to say whatever is in your head however you wish to providing it doesn't harm - harm, not offend - anyone else, I reckon it's a Pyrrhic victory at best. The implication that there is some right to go through your whole life without ever being offended has again gone unchallenged, and that's the worst result of all.

So let me lay it out for the Christie Turner's of the world, not to mention any magistrates who think it's for the law to rule on what words are offensive and whether people are reasonable depending on what they think of a particular word. There's no right to not be offended and there never can be (I for one would be offended by being given such a right). This doesn't mean that you can't be offended when Mr Mulheron talks about niggers and abos - it just means that in return you may call him an inbred, senile, redneck fossil with shit for brains or whatever flicks your switch, and if Mr Mulheron is offended by it, tough.

1 - As we all know sometimes minority groups aren't anything like quick enough to take offence and might even entirely fail to notice that they're being offended. Therefore it's left to well meaning and better educated middle class white people with absolutely no sense of irony to do it for them.
2 - Go ahead, Christie, be offended (I know it's feeble but it's the only name I know for Queenslanders) by something aimed at you for a change. My pleasure.
3 - Though I've heard people say that 'indigenous Australians' is also patronising and we were fine sticking with 'Aborigines' provided it isn't shortened. Other people have told me that actually 'abo', 'aborigine' and 'indigenous Australian' are all wrong and we should instead say 'Koori' or 'Tiwi' or whatever the locals called themselves before Europeans arrived. Needless to say all this advice has come from fellow white Europeans and misses the point that not all of Australia's half a million or so aborigines will necessarily want to be referred to the same way.