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Where does society end and the rights of the individual begin? That is the true question that lies at the bottom of the Israel Folau controversy. The courts have been given the unenvious task of determining whether an organisation has the right to punish those members who don’t share its views, or if the rights of the individual should be upheld.
Former rugby player, Israel Folau and his lawyers are seeking up to AuS$15 million (including Aus$5m for the irreparable damage done to Folau’s reputation) from Rugby Australia. Folau had had his contract with Rugby Australia terminated after he was found guilty of a high-level breach (the only kind that can result in termination) of their code of conduct. This high-level breach came from Folau’s decision to post a picture on Instagram stating that hell awaited “drunks, homosexuals, liars, fornicators, thieves, atheists, and idolaters.”
Having failed to reach a settlement with Rugby Australia at a Fair Work hearing, Folau and his lawyers have moved their case on to the Federal Court. Folau himself has merely expressed his desire for Rugby Australia to admit they terminated his contract because of his religious beliefs. In a video, Folau stated: “Hopefully, Rugby Australia will accept that my termination was unlawful and we can reach an agreement about how they can fix that mistake. First and foremost, I am hoping for an apology from Rugby Australia and an acknowledgement that even if they disagree with my views, I should be free to peacefully express my religious beliefs without fear of retribution or punishment.”
According to Rugby Australia’s, Folau’s contract was terminated on the basis that he had violated their requirement to “treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability.”
Of course, what really lies at the centre of the Folau case is not homophobia, but freedom of speech and freedom of religion. It is really a question of whether Israel Folau should be allowed to express his religious views without suffering economic or judicial penalty.
Both the US Supreme Court and the Australian Law Reform Commission have placed a special emphasis on freedom of speech. The US Supreme Court has noted that all other rights and freedoms are put in peril when freedom of speech is not protected. Similarly, the Australian Law Reform Commission has stated: “freedom of speech is a fundamental common law right. It has been described as the ‘freedom part excellence: for without it, no other freedom can survive.’
Likewise, the Australian Magna Carta Institute stated:
“Freedom of speech is an essential aspect of the rule of law and ensures there is accountability in government. People must be free to express their opinion about the content of laws, as well as the decisions of government or accountability is greatly reduced. Freedom of expression is a boarder term which incorporates free speech, the right to assemble, and other important ways of expressing ideas and opinions. The balance the law of Australia strikes between protecting and restricting freedom expression generally is very important to understand the health of the rule of law in Australia.”
It is remarkable to note, however, that freedom of speech is protected by neither the Constitution of Australia nor by Federal Legislation. In fact, there is a wide array of laws and regulations that place legal restrictions on expression. One cannot publish military secrets, incite criminal activity, or defame or libel another person.
Rather, freedom of speech is considered a common-law right adopted from the Westminster system. It is a feature of our political and legal traditions. The Australian High Court has stated that there is an implied right to freedom of expression embedded in the Australian Constitution (they did not say anything, however, about non-political expression). Likewise, Australia is also a signatory of the International Covenant on Civil and Political Rights which lists freedom of expression as a fundamental right.
Freedom of religion is a natural extension of freedom of speech, expression, and association. It is derived from the simple fact that the government has no right to dictate what my beliefs should be. The government has no right to force me, a Christian, to accept gay marriage, abortion, or anything else I find incompatible with my beliefs.
Unlike freedom of speech, freedom of religion is a right guaranteed by the Australian Constitution. Section 116 of the Australian Constitution reads:
Commonwealth not to legislate in respect of religion
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required for any office or public trust under the Commonwealth.”
Similarly, freedom of religion is protected by Australian case law. In the case of Church of the New Faith v. Commissioner for Payroll Tax (Vic), the Judges Mason ACJ and Brennan J. commented: “freedom of religion, the paradigm freedom of conscience, is the essence of a free society.” Similarly, in the case of Evans v. New South Wales, the Federal Court decreed that religious freedom as an “important freedom generally accepted in society.”
The road to hell is paved with good intentions. A decision that favours Rugby Australia will give large organisations the legal mandate to bully and intimidate those that don’t agree with their views. If Australia’s Federal Court truly believes in freedom, it will uphold Israel Folau’s right to freedom of speech and religion, and rule against Rugby Australia.
In March of this year, the vlogger Mark Meechan was convicted in a Scottish Court of violating the Communications Act 2003 for a video he had uploaded to YouTube in April 2016. The video, which Meechan claimed had been produced for comedic purpose (he claimed he wanted to annoy his girlfriend), featured a pug dog making Hitler salutes with its paw, responding to the command “gas the Jews” by tilting its head, and watching a Nazi rally at the 1936 Berlin Olympics.
The Scottish Court that convicted Meechan (who is much better known as ‘Count Dankula’) concluded that he had been motivated to produce the video by religious prejudice. Perhaps without realising it, by convicting Meechan, the Scottish legal system has illustrated the importance of free speech and the threat that political correctness poses to it.
Unfortunately, legally and politically incited attacks against both free speech and comedy are not limited to the United Kingdom. In Canada, politically correct inspired attempts to silence comedians have been instantiated into law. In one alarming case, the Quebec Human Rights Commission awarded Jeremy Gabriel, a disabled former child star, $35,000 in damages after he was ridiculed in a comedy routine by Mike Ward.
It is little wonder, then, that some comedians have seen cause for alarm. Some, like Chris Rock, now refuse to perform on college campuses because of the oversensitivity of some of the students. Others, like legendary Monty Python star John Cleese, have warned that comedians face an “Orwellian nightmare.”
Political correctness is the antithesis of comedy. It is not that comedians have been prevented from practising their craft, but that the pressures political correctness place on them makes it difficult to do so. The comedian feels himself pressured to self-censor himself because of the way words are categorised by their supposed offensive or inoffensiveness. And he finds himself fearful of having his words twisted and misinterpreted to mean something other than what he meant it to mean.
Much of the problem arises from a culture that has elevated politics to something approximating religion. And, like all zealots, the fanatics of this new religion have attempted to conform every aspect of society to their new faith. It is the job of the comedian to make me laugh. It is not his job, as some would have you believe, to play the role of political activist.
Unfortunately, that view is not one held by many on the radical left. In an article for the Sydney Morning Herald, Judith Lucy opined that people wanted to “hear people talk about politics or race.” And it seems that there are people who agree with Lucy. Comedy is not to be used to bring joy to people, but as a platform to espouse politics. Comedy has become a form of propaganda. And it is the liberal agenda that determines what is considered funny and what isn’t.
What the politically correct offer instead of genuinely funny comedy is comedy as a form of political activism. Comedy is to be used to spread progressive ideas and political correctness is to be used to silence that which opposes those ideas. Take, for example, Tim Allen’s sitcom Last Man Standing, which revolved around a conservative protagonist, which was cancelled by the American Broadcasting Company despite its popularity.
And nowhere can this trend of comedy as political activism can be seen more readily than in the current incarnations of late-night television. Legendary comics like Johnny Carson and David Letterman established late-night television as a form of entertainment that provided light-hearted entertainment before sending its audience off to bed. It was not afraid of offending people in order to do so, either. Today, however, this willingness to offend others seems only to be targeted towards those on the right of the political spectrum. It is as though the late-night comedian has decided to use his position to preach progressive politics to its audience rather than using their talent to make insightful and hilarious observations about the world around us. The result is that late-night host places commenting on political or social matters above entertaining his audience.
It is as though the late-night host has replaced humour for indignation. The “jokes” (in reality they are tirades) contain more than a modicum of vitriol and resentment. Samantha Bee referred to Ivanka Trump as a “feckless cunt”, Stephen Colbert accused President Trump of being Vladimir Putin’s “cock holster”, so on and so forth.
While it may seem alarming, it is precisely what happens when comedians see themselves as activists rather than entertainers. As Danna Young, Associate Professor of Communication at the University of Delaware, commented:
“When comics abandon humour and go with anger instead, they come just another ‘outrage’ host. Now, if that’s cool with them, great. But if they are looking to capitalise on the special sauce of humour, then they’ll need to take their anger and use it to inform their craft, but not have it become their craft.”
Fortunately, there is a litany of comedians who refuse to conform their comedy to the morays of political correctness and progressive politics. Numerous comedians have denigrated political correctness as the “elevation of sensitivity over truth” (Bill Maher) and “America’s newest form of intolerance” (George Carlin). Jerry Seinfeld, a man whose comedy routines are considered among the least offensive in comedy, referred to political correctness as “creepy” on Late Night with Seth Meyers. Bill Burr accused social justice warriors of being bullies. Likewise, Ricky Gervais has tweeted “if you don’t believe in a person’s right to say things you find ‘grossly offensive’, you don’t believe in free speech.”
And all of this is not to say that political correctness has destroyed genuinely funny comedy, either. Netflix has spent a great deal of money producing comedy specials that are, in many cases, far for inoffensive. Ricky Gervais comedy special Humanity has featured jokes about rape, cancer, transgenderism, AIDS, and the Holocaust.
Comedy has been threatened by both progressive politics and political correctness. Mark Meechan may have found himself running afoul of the politically correct left, but as long as their people who stand committed to free speech and comedians prepared to make offensive jokes, the laughter will continue.