The First Amendment only protects us against the government, and that alone makes the NFL's case strong, but they're also correct to limit protest.
Earlier this year, I had to reassure British friends that Israel Folau was not, in fact, a Jewish pastry. Outside Australia, only rugby fans had any real reason to know of him.
In May, Rugby Australia sacked him from the Wallabies (the national team) and the Waratahs (the New South Wales Super Rugby team), having suspended him in April. The cause was not poor performance on the field or criminal behaviour off it but an Instagram post where he stated that homosexuals, among other sinners, were destined for Hell.
His social media use and Rugby Australia’s response unleashed a cultural and political firestorm in Australia—one that may even have contributed to the Labor Party’s unexpected loss in May’s general election. Folau has also raised more than two million Australian dollars to fund unfair dismissal litigation against Rugby Australia. Although judges and advisers on both sides have enjoined caution and counselled mediation, a five-day trial starting in early February 2020 seems almost certain.
Isileli (“Israel”) Folau is arguably Australia’s most famous footballer (as Australians call rugby players), which is saying something in a country that adores both footballers and sporting success more widely. He’s played at an elite level across three codes: rugby league (NRL, called “league”), Australian Rules (AFL), and rugby union (known simply as “rugby”). He’s a dual international (representing Australia in league and rugby), the former at the age of 18, making him the national side’s youngest-ever player. His size (6’4” and 230lb), physical beauty, ability to accelerate from a standing start, and deft sidestep once made him the face of rugby even in New Zealand, home to arch-rival (and far more successful) team the All Blacks.
Until recently, he had a reputation for humility, being well-spoken, and clean living. He was devoted to his family, married to a charming and gifted New Zealand netball international (Maria Folau née Tuta’ia), and generous to charity. Children loved him because he had the patience to stand and sign autographs for hours. Adults admired how he took his role-model status seriously in sports notorious for “bad boys.” While NRL team-mate Todd Carney was photographed urinating in his own mouth and finally sacked after a string of petty criminal offences, Folau was writing a series of rugby-themed children’s books.
Then, in April 2018, one of Folau’s Instagram followers asked what “God’s plan for gay people” was. Folau replied: “HELL. Unless they repent of their sins and turn to God.” Rugby Australia carpeted him—he was formally reprimanded—and the comment (buried in a lengthy thread) disappeared. Nevertheless, he signed a new, four-year contract at the end of the season.
April 2019’s effort was different. The week he broke the all-time Super Rugby try-scoring record, he again took to Instagram to air his religious views. The meme he posted paraphrased 1 Corinthians 6:9-10: “WARNING Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolaters HELL AWAITS YOU. REPENT! ONLY JESUS SAVES.” One could argue he’d been goaded into the 2018 comment by questions from another user. This post (complete with its colourful, if amateurish, graphic design) was crystal clear.
Rugby Australia’s response was swift.
The organisation immediately denounced the post as homophobic. The next day, it announced an intention to terminate Folau’s player contract “in the absence of compelling mitigating factors,” and said it had been unable to contact him. Ahead of his disciplinary hearing, Folau said he wanted to keep playing.
He was found guilty of a “high level” code of conduct breach by a three-person independent panel and lost the sponsorship of sportswear company ASICS. Qantas is Rugby Australia’s main sponsor and its openly gay CEO, Alan Joyce, waded into the debate after the hearing: “We don’t sponsor something to get involved in controversy. That’s not part of the deal […] It’s not an issue for Qantas, it’s an issue for every potential sponsor for Rugby Australia, ever.” The story then got messier. It transpired that fellow Wallabies Samu Kerevi and Allan Alaalatoa had “liked” Folau’s post while other team-members had “unliked” it as outrage mounted.
Talk that all the Pacific Islanders in the team were Christians who believed exactly the same thing but were afraid to say so circulated. Former Wallaby Nick Farr-Jones, meanwhile, tried to explain what was going on inside Folau’s head: “He absolutely believes he’s done nothing wrong. He believes he’s put those posts out in love […] as a warning to the sinner of the consequences of sin. I would say in a nutshell Israel loves the person; he hates the sin.”
Delivering a sermon at his church shortly after the hearing, Folau broke down, struggling to articulate a famed Biblical quotation: for what shall it profit a man if he gains the whole world, and loses his soul?
On 17 May 2019—the day before a Federal Election it had overshadowed for the best part of a month—Rugby Australia terminated Folau’s four-year employment contract, ending his career with both the Waratahs and the Wallabies. Folau went to law in response, relying on Australia’s robust industrial legislation to protect his speech. He wants, above all, to play again. He also wants an apology and AUD$10 million in compensation.
It’s difficult to convey to outsiders the way industrial relations operate in Australia or the (still considerable) might of its trade unions. Australian employment law has deep roots in a 1907 legal ruling that held “fair and reasonable” wages for an unskilled male worker required a living wage sufficient for “a human being in a civilised community” to support a wife and three children in “frugal comfort.” A skilled worker should receive an additional margin, regardless of the employer’s capacity to pay.
In addition to ensuring workers are well paid, Australia’s Fair Work Act makes it illegal to sack an employee on a large number of grounds; religion is only one. It protects the hard-won trade-union-derived right to engage in activity with which one’s employer disagrees outside work hours with real teeth. It evinces an historic and on-going national obsession with fairness.
This means Australian labour law conflicts with informal norms now emerging via social media and woke cancel culture more widely, and attempts to get people sacked based on their views have created all sorts of comical (but radioactive) fallout. Probably the most amusing case was the spectacle of the extremely left-wing National Tertiary Education Union successfully defending an academic who questioned aspects of climate change from his Australian university employer. On the other side of the political aisle, a prominent sports journalist sacked for calling Australia’s ANZAC troops at Gallipoli a pack of rapists and racists on ANZAC Day (Australia’s equivalent of the UK’s Remembrance Day and Memorial Day in the United States, but observed with far more solemnity and marked with a bank holiday) won a significant settlement.
Maybe speech protection achieved by dint of labour law is just as well: Australia has no Bill of Rights and limited constitutional rights protections. Cases taken to the High Court (the country’s constitutional court and superior appellate court) on speech grounds typically fail. Cases brought under the Fair Work Act, by contrast, often succeed.
Across the developed world, social media and the imperatives of “brand management” have led many employers to get into the business of directing their employees’ minds out-of-hours. The grim roll call of sackings and defenestrations over political views is a long one. In the UK, Sir Roger Scruton is the headline case, but only because he was already famous. Hundreds of unknowns have found themselves in a similar position, but with no recourse. Only in Australia is there a regime mandating—even when incorporated in an employment contract—that corporate social media policies cannot overrule fundamental worker rights and employer duties enacted in law.
Many people have failed to appreciate this, something that led a number of lefty commentators to sing the praises of Israel Folau’s employment contract with Rugby Australia simply because they don’t like the religious boot with which he kicks; in other circumstances—with a more politically congenial employee—they’d be running a picket and backing him to the hilt.
Employment litigation in Australia is inexpensive. Court costs are low, poor people pay nothing, and self-representation is encouraged. So when Folau launched a GoFundMe campaign with a three million dollar target to fund his case against Rugby Australia a lot of people fell off their seats—especially employment lawyers. “Three million is enough to fund a High Court challenge,” Russell Blackford, a former industrial relations barrister and now legal academic told me.
In setting such a huge target, Folau signalled an intention to make his situation a test case; there’s been limited judicial consideration of the religious expression provisions in the Fair Work Act because most litigation settles. Employers who’ve fired a Muslim for wearing hijab or a Jew for growing payot (sidelocks) have typically sought to avoid the limelight, for obvious reasons. Folau’s decision makes this impossible.
Lawyers may have noticed Folau’s desire to set a precedent in Australia’s superior appellate court, but that’s not how it looked to many ordinary members of the public, including fellow Wallabies. Drew Mitchell, who played with Folau in the 2015 Rugby World Cup, took to Twitter and said Folau had received more in donations than similar campaigns to raise money for children with cancer. “It’s no longer about religion, it’s about YOU and YOUR greed,” Mitchell thundered. The text of Folau’s appeal on GoFundMe supported Mitchell’s suggestion that he was grifting: “There will be no obligations on Israel Folau to […] apply the funds in any particular way.”
GoFundMe, Patreon, SubscribeStar, PayPal—all have elements of the classic grift in them. If you ever think scams have gone the way of fast-talking men in fedoras and three-card Monte on street corners, you need only note the number of people on social media who produce alarmist speculation about everyone from Boris Johnson to Jeremy Corbyn and manage to turn a handy profit in the process. You’re told how they’re standing up to The Man and they rake it in, a success borne of persuading people that everything they value is under attack. Thanks to cack-handed writing coupled with a failure to obtain legal advice, Folau really did look like he was making a slick appeal designed to soak people for donations.
At that point, a nasty but nationally contained dispute got uglier and went dramatically global in the process. First—after she shared her husband’s GoFundMe appeal on Twitter and Instagram—Maria Folau was subjected to vicious abuse and public opprobrium. Then GoFundMe shut down Folau’s fundraising campaign and returned the AUD$750,000 it had raised to donors, but in the name of inclusivity rather than dubious legality. “We are absolutely committed to the fight for equality for LGBTIQ+ people and fostering an environment of inclusivity,” it said. “Our platform exists to help people help others.”
The Australian Christian Lobby, a conservative advocacy organisation, stepped in to manage the fundraising and calm the outrage. Technically competent and properly advised, the ACL ensured funds solicited would be used only for legal costs with any surplus returned to donors. No doubt aided by what had become a political conflagration, the ACL raised more than two million dollars in 24 hours. Perhaps realising it had a tiger by the tail, it hit the “pause” button, opting to wait and see how far Folau’s case went.
Maria Folau’s involvement engaged (and enraged) the New Zealand public. She’s a star netballer in New Zealand’s national team the Silver Ferns, and when an Australian-based banking conglomerate and team sponsor (ANZ) attacked her, many Kiwis hit the roof. “We do not support the views of Silver Fern Maria Folau and have made our views known to her employer Netball NZ,” ANZ intoned from on high. Netball NZ—well aware the larger country has often bullied the smaller—responded with the straightest of straight bats: “Maria Folau has not breached NNZ policy,” it said. “We acknowledge that people have differing views and beliefs. It is important those opinions and views are expressed in constructive and respectful ways.”
New Zealand’s peak netballing body was, at that moment, the only adult in the room. Its measured response also revealed something else: that white New Zealanders are often better able to engage with Pacific Islanders than Australians are. This skill is built on the country’s good race relations with the Māori, New Zealand’s indigenous population.
Pacific Islanders are overwhelmingly socially conservative Protestants of various stripes; Christian missionaries enjoyed rare success in countries like Fiji, Samoa, and Tonga. So are many Māori, although statistically, more Māori are atheists and agnostics. Both cultures have a strong tradition of “what’s mine is yours” and filial piety. People like Israel and Maria Folau, having become wealthy, are expected to support their parents and share with their siblings. Israel has five; Maria, six. Much was made of Israel’s extensive property portfolio when grifting claims first surfaced. However, he’d purchased two houses for his parents, investment vehicles of various sorts for his siblings, and kept comparatively little for himself. Like many Pacific Islanders (Israel’s background is Tongan, Maria’s Samoan), both families were poor and drew on a blend of Christian and Islander traditions to motivate them to succeed.
Unlike New Zealand, where it is the national game, rugby in Australia was traditionally a sport of the middle and upper-middle classes, an amateur competition to be played by gentlemen. League, by contrast, has always been professional: it emerged from an 1895 schism in rugby concerning payments to players. Talented Pacific Islanders usually ended up playing league because there was no way they could self-fund an international sporting career.
In 1995, Australian rugby became fully professional too, and it’s now a fascinating example of cultural détente. Teams are a mixture of whites from elite public (“independent”) schools in Sydney, Canberra, and Brisbane alongside a strong Pacific Islander contingent. Islanders are talent-scouted when young, shepherded through the system, and sometimes offered scholarships to attend those elite schools. Australian rugby depends on two groups with different backgrounds and cultural assumptions coming together in teams across the country to make it all work. When this process fails, Australia performs poorly—as it did in the most recent Rugby World Cup.
Shadow Assistant Treasurer Stephen Jones—a Labor MP no doubt still smarting at his party’s shock electoral defeat—grasped the Folau-shaped political nettle for the left side of politics on June 25th. He did so on the national broadcaster, while being interviewed by a prominent lesbian journalist, Patricia Karvelas. “I fundamentally disagree with what Israel Folau has been saying,” he said, “but I’m very uncomfortable with the way this debate has been handled.”
Internal Labor polling conducted in the wake of the loss showed that many members of ethnic minorities felt “Labor wasn’t on their side.” Given that Jones had introduced the first same-sex marriage private member’s bill to be voted on (in 2012) and watched his party leader and Prime Minister, Julia Gillard, vote it down, his comments carried weight. He’d also lived through Labor’s discomfort as, during Australia’s October 2017 plebiscite on same-sex marriage, the bulk of the votes against the legal change were in ethnically diverse constituencies held by Labor MPs. He recognised how hard it is to be the party of multiculturalism at the same time as the party of LGBT rights.
“Well, this is what multiculturalism looks like,” Jones said. “It looks like people of different cultures, different faiths, different backgrounds coming to our country, expressing different views, even if they fundamentally disagree with the views that I hold.”
Jones suggested convening town-hall style meetings between conservative Christians and Muslims and same-sex attracted young people, working on the principle that it’s difficult to continue believing one’s opponents have the sexual or religious equivalent of two heads and green teeth once you’ve met them in council chambers over a cup of tea and a biscuit. He expects movement from both sides, and wants resolution through civil society (“instead of trying to find legal remedies to this, instead of trying to de-platform”), not the courts. “I think it is important for the religions themselves and the religious leaders themselves to be exposed to these broader political debates in a respectful way.”
His is an abiding faith in the Australian settlement; the belief that everyone gets a fair go.