Folau’s dismissal by Rugby Australia has ignited a debate about whether employers should be able to restrict employees’ speech outside work. While conservatives have defended Folau on religious grounds, others such as Gillian Triggs, Josh Bornstein and John Quiggin have cautioned that such restrictions give business too much power.
The latter position holds that limits to free speech should be determined democratically, not by capital. Business has no framework for adjudicating morality; its objective is simply profit.
The employment relationship is not a systematic or equitable basis for regulating speech. Only half the population is in the labour force. Why should non-workers, the self-employed, or the independently wealthy – who don’t need to work – be able to get away with harmful speech? Employees with conservative bosses may also escape censure; meanwhile, enlightened speech might be punished.
If formal punishment is appropriate for Folau, it should be administered by government, under speech regulation that is democratic, consistent and transparent.
So what would a democratic approach to speech regulation look like? We already have some examples, such as laws on racial vilification, sexual harassment and menacing speech. Folau’s speech could be restricted by significantly expanding the scope of these kind of laws.
Folou’s sacking has two main functions. It serves as a deterrent, discouraging others from making homophobic comments; and it aims to take away Folau’s ‘platform’, reducing his ability to promote harmful ideas.
To achieve these functions, a criminal offence could be legislated to punish speech that is hostile or harmful towards protected groups, such as LGBTQ.
For deterrence, punishments would be aligned with what an employee could currently experience from employment penalties. For Folau, dismissal will cost him the three years left on his contract (reportedly $5 million). Let’s assume Folau would earn half this amount in alternative employment. Thus Folau’s employment punishment is equivalent to 1.5 years of earnings.
Under the proposed law, the court would impose a fine equivalent to 1.5 years of the offender’s income (around $2.5 million for Folau) for an equivalent offence. The fine could be calculated based on past or current income, with judicial discretion to make adjustments in special circumstances.
Let’s assume Folau’s offence is around the mid-point of severity. The maximum fine, then, should be twice as much – three years’ income. In addition, the judge would have discretion to impose community service or, in grave cases, jail.
As an elite footballer, Folau had a large audience for his opinions. Many who support Folau’s sacking argue it will remove this platform. But efforts to ‘de-platform’ sometimes backfire, generating greater publicity for the offending material. This phenomenon even has a name – the Streisand Effect.
In Folau’s case, the firing unquestionably raised his profile and increased awareness of his comments. Folau raised $600,000 on GoFundMe within 12 hours of asking for donations towards legal expenses. GoFundMe cancelled his campaign, but it just moved to a different website and donations surged. More than $2 million was raised from over 20,000 donors. De-platforming is a tricky business.
Unlike private sphere de-platforming, state censorship can have serious teeth. A sentence under our proposed legislation would include time-limited restrictions on the offender engaging in public communications, such as bans on media engagements, rally attendance or social media use. Repeat offenders may have their phone and internet connections cut.
Let’s not be squeamish about tough criminal punishments. Sure they might destroy someone’s life, but so might losing a job. And while Folau’s going to be alright, for others job loss can lead to family breakdown, homelessness, suicide. At least the public sector approach will provide a judge, transparent rules and appeal mechanisms.
It is also more humane. Unlike job loss, financial penalties would be limited to three years’ loss of income, and payable through a HECS-style loan. As for jail in the most extreme cases, well why not? For a marginalised community – vulnerable to suicide and violence – hate speech can be a matter of life and death. Arguably it is a form of violence. Even non-violent property offenders go to jail.
It is true that offenders’ communication rights would be significantly repressed, but that’s the whole point of de-platforming. The public sector just happens to be more effective at it than the private sector.
It is also true that the legislation would constrain political and religious freedoms. It would criminalise statements of theology subscribed to by significant minorities of the Australian community. But all speech restrictions, whether imposed by the public or the private sector, must by definition trade away freedoms.
It is surely more ethical to administer this trade off in a democratic, systematic and accountable way than by the amoral criterion of profit. Criminalising Folau is therefore morally preferable to sacking him.
Is it too harsh? Does it go too far? Well, I don’t know, does it?