Folau has the right to speak and still be sacked

Free speech may mean that the law doesn’t stop you from saying something, but in the case of Israel Folau and Ruby Australia, free speech doesn’t mean the speech is free from all consequences, writes lawyer Justin Quill.

Israel Folau should be permitted to express the views he recently posted on social media. That’s part of free speech. But he should be sacked for doing so.

That might sound inconsistent, but it’s not.

Free speech means the law doesn’t stop you from saying something. Free speech doesn’t mean the speech is free from all consequences. These could range from people simply disagreeing with your views to people not wanting to associate with you. Or in the case of Folau, even sacking you for expressing your views.

In the same way Folau is entitled to exercise his right to free speech, his employer, the Australian Rugby Union, should be entitled to exercise it’s right to terminate his employment. Remember, this is not the first time Folau has made offensive comments.

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His most recent statements were expressed via an image he posted on Instagram that read: “Warning: Drunks. Homosexuals. Adulterers. Liars. Fornicators. Thieves. Atheists. Idolaters. Hell awaits you”.

Folau may be free to speak as he wishes, but that doesn’t mean there are to be no consequences. Picture: AAP/Dave Hunt

For the record, I consider the statement more than ridiculous. It was offensive and perhaps even dangerous in the sense that it’s not hard to imagine a young, possibly confused homosexual person who is trying to reconcile their sexuality with their religion being adversely affected. Imagine if they are a promising rugby player who looked up to Folau.

His views are the extreme end of Christianity. And extremism — in just about anything, but particularly religion — is often divisive and dangerous.

But in my view, Folau’s comments are not a breach of the law. Nor should they be.

The NSW Anti Discrimination Act (almost identical to its Victorian equivalent) makes it unlawful for a person to “incite hatred towards, serious contempt for or severe ridicule of” a person because they are homosexual.

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I’m not sure Folau’s comment — ridiculous as it was — reached that level. But even if it did, the Act specifically exempts statements made in good faith as part of religious instruction or for public discussion or debates in the public interest.

In my opinion Folau’s comments are protected by the Act and so they should be. It should not be against the law for him to say what he said.

Rugby Australia Chief Executive Raelene Castle updated the public about the future of Wallabies player Israel Folau last week. Picture: Matt King/Getty

Rather than shut down such hateful opinions, the better way to deal with religious zealots is to call them out. That is how society’s views develop in a democracy.

So sack Folau. Ostracise him. Make him — and hopefully others — realise these antiquated opinions are not shared by others.

Folau’s NSW and Wallabies captain Michael Hooper and his former NSW and Wallabies teammate Drew Mitchell — now a commentator with Fox Sports — criticised Folau for his divisive statements. And while that’s unlikely to sway people like Folau, those who are blindly committed to their beliefs, it means those who are wavering on the subject will exposed to opposing views.

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So the ARU has indicated its intention to sack Folau. As is it’s right. After all, Folau is an athlete and the ARU gives him the platform, the standing, that he is using to express his religious beliefs.

But while I think the ARU should have the right to sack him, it is another question whether the law will allow them to do so. Folau could have gone quietly, although that was never likely to happen. He has requested a code of conduct hearing at which it will be determined whether he has breached the player code of conduct.

Folau has requested a code of conduct hearing at which it will be determined whether he has breached the player code of conduct. Picture: AP/Rick Rycroft

I don’t know the precise terms of Folau’s contract with the ARU. Last week this newspaper reported that the ARU had — somehow — failed to insert a clause in Folau’s contract that prohibited him from publicly expressing his views. That would have been a sound move from a legal perspective. Instead, it seems the ARU demanded in writing that he not go public.

The ARU’s CEO, Raelene Castle, said she had spoken to Folau a year ago and he had agreed not to post his homophobic rhetoric. But that doesn’t necessarily equate to a contractual term. Given the ARU has cited a breach of the code of conduct, it seems it is relying on what I am almost certain would be a term of Folau’s multimillion-dollar contract that he abide by the code. That’s not as strong as having a specific term in the contract.

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So a three-person panel will have to decide whether Folau’s Instagram post was a breach of the ARU’s code.

I have reviewed the code and it refers to the use of social media and to making public comment that is detrimental to the image of the game or brings the game into disrepute. It requires players to treat others with dignity, regardless of their sexuality. So I consider it likely Folau has breached the code of conduct. But you couldn’t say the code is absolutely clear and indisputable.

One thing that cannot be disputed however is that Folau’s views — thankfully — are not shared by the majority of Australians.

Justin Quill is a media lawyer with Macpherson Kelley Lawyers which acts for the Herald Sun.

@justinquill