Enforcing enlightenment

I agree wholeheartedly with Jonathan Holmes’ article (and his April 4 episode of Media Watch) on Andrew Bolt. There are probably a few essays now floating around expressing a similar sentiment on Bolt’s run-in with the Racial Discrimination Act.

Australia doesn’t have an institutionalised right to free speech (except political speech, as narrowly implied by the electoral provisions of our constitution). However, there is near universal agreement that free speech is a fundamental right. The preamble to the Universal Declaration of Human Rights states, in part:

The advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.

Most of us do acknowledge that speech cannot be completely free. There are privacy rights to consider. There are libel and defamation laws that offer a defence against malicious untruths. There are also security, diplomatic and intellectual property issues that require a degree of secrecy.

Most of us also abhor racially-motivated hate speech. I can support laws against incitement to commit acts of violence or discrimination (e.g. Section 17 of the Racial Discrimination Act), because (though I’m not a lawyer) that offence seems fairly easy to define and has an immediate impact on the safety and opportunities of others. Not so the consequences of speech that is merely “offensive, insulting, humiliating or intimidating”, as outlawed in Section 18C. Those criteria are more than enough to publicly condemn the speaker, but not nearly enough to deserve legal proceedings.

The kinds of acts being outlawed in Section 18C might be vicious, cruel, and stupifyingly inane, but they are not defamation and not incitement, and nobody’s safety or opportunities are compromised by them. Most of us (I hope) would loosely agree that things should be legal unless there is a compelling case to make them otherwise, and I simply don’t believe that case has been made here. The law is not a scalpel we can use to extract cancerous thought – it is a blunt instrument to help prevent tangible wrongdoing.

Andrew Bolt is a true test of our commitment to free speech, because he says almost nothing of value. Any reasonable person would deride almost everything he stands for. His sneers at people of other races and cultures, at the scientific and academic establishment, at anyone else tenuously associated with “the Left”, are worthy of nothing but pity and derision. If he were to engage in defamation or incitement, throw the book at him by all means, but otherwise leave him to his deranged ramblings.

In the general case, Section 18C has clearly not been enforced with much conviction. Bolt and like-minded ideologues have so far gotten away with a great many acts that would seem to be prohibited. If enforcement ever did suddenly become an overwhelming priority, I expect the situation would rapidly descend into farce, with a million bigots mobilised and screeching obscenities into every possible medium. Their White Christmases would all come at once. It would, in other words, backfire spectacularly. The instinct to ban hate speech is motivated by a commendable desire to change minds (or at least to prevent them being perverted by hatred), but the law is exactly the wrong tool for the job.

Free speech is not about saying nice things. We have no need of laws to protect our right to talk about the weather, sports or cooking. Free speech is about protecting those who offend us, because it is precisely this group that is otherwise perpetually in danger of being shut down, or sent underground. Sometimes, the offending remark is itself more enlightened than those offended by it, and so does more good than harm, but not always. Even when the message has no redeeming value whatsoever – even when it demonises the most vulnerable – free speech is about protecting society from itself, while also providing the only useful way to fight back.

6 thoughts on “Enforcing enlightenment

  1. and nobody’s … opportunities are compromised by them

    I disagree on this point. Bolt specifically complained about the opportunities a group of people had access to. It would be absurd to think that he wanted to complain about it to no effect — in every other topic he writes about, he clearly wants to change the thing he’s complaining about. When he rants about the politics of climate change, the act of writing and publishing is — in and of itself — a clear effort to change the end result. Why is this any different?

    In one case, he out-and-out lied about a person’s heritage and ethnicity in order to make them seem like they were less qualified to act in certain roles. You can’t un-publish that. It’s out there, and no correction will ever catch up with it, and that person had better hope no-one reads it who will ever be interviewing them for a job.

    So how can you interpret his writings as anything other than an attempt to compromise the opportunities available to the group of people he targeted in his article — and targeted on the basis of their ethnicity and the colour of their skin?

    (I do realise that your argument is primarily against another part of the act, since the prosecution isn’t using the above interpretation of events. That doesn’t mean it’s not a valid interpretation, however.)

    • Finally, we disagree on something! (And I think you are taking issue with my main point on Section 18C, so there.)

      I hadn’t heard specifically of Bolt telling lies about a person’s heritage and ethnicity. Surely, where lies are concerned, libel/defamation laws provide a more orthodox and appropriate legal recourse. Anything less than a lie, I suspect, isn’t going to cause a great deal of damage to one’s reputation and thus opportunities.

      Beyond that, I don’t think Bolt’s motives are that clear-cut. He’s somewhere (and I’m not entirely sure where) on the spectrum between:
      (a) genuinely wanting to destroy his targets, and
      (b) secretly hoping they stick around so he can keep punching them and maintain his readership.

      Bolt might not care particularly what happens to his targets, as long as he can find something to stir up his audience.

      • Anything less than a lie, I suspect, isn’t going to cause a great deal of damage to one’s reputation and thus opportunities.

        Two words: David Campbell.

        Humiliation is a brilliant political tactic to completely ruin someone’s credibility and ability to succeed, without even needing facts to check. Just a whole heap of privilege and some weasel words.

        • Touche – I’ll admit there are numerous counterexamples to what I said in politicians like Campbell. But what kind of law would you institute to prevent what happened to Campbell? There’s the public interest test, but that’s difficult to interpret sometimes, probably very difficult to enforce, and even if it was enforced it might easily be open to abuse.

          • The problem is, defamation affects one person. Humiliation based specifically on sexuality, gender, ethnicity, or any other class of institutional marginalisation affects (a) the person targeted, and (b) any other member of such a group. Gay people still have to choose between publicly disclosing incredibly private information up front, or not running for any kind of publicly scrutinised office. Indigenous Australians now have to consider just whether their skin is dark enough to go for, say, an Aboriginal liason position, or risk being targeted by the likes of Bolt (who implicitly undermines the legitimacy of such positions, with the consequence of further marginalisation of a whole group of people).

            I consider this to be orthogonal to racial discrimination (or, more to the point, a larger issue that intersects with it), so maybe it should disappear from the RD act and appear as a separate law in its own right. And I wouldn’t miss the “offensive, insulting, etc” part of the law. But I believe that deliberate attempts to humiliate a person like this should be something a person could see themselves in court for, same as defamation.

          • I’d certainly feel a lot more comfortable with the Racial Discrimination Act if “offensive” and “insulting” were removed. The “humiliating” and “intimidating” aspects do seem rather more urgent, and more narrowly-defined. They also imply an uneven power relationship, which the law could help mitigate.

            However, I’d be more comfortable still if the Act articulated some sort of legal test for humiliation and/or intimidation. We don’t want, for example, Bolt himself to be able to claim humiliation as a result of efforts to point out how many times he’s been wrong, hypocritical and generally unpleasant. (I don’t think Bolt himself would do that, but others like him might). And I think we need to allow people to get angry at each other without risking immediate legal consequences.

            I also think we need to allow for misunderstandings and differences in cultural sensitivities. For instance, there is often great consternation when someone is compared to a monkey, because it can be a racial slur. But a great many people simply don’t know this, myself among them until recently. I previously would have considered it a fairly benign insult. In other words, to claim in court that someone humiliated you, you should need to prove culpability.

            However, one broader problem with the law and humiliation is that the legal case itself may prove more humiliating than the original offence. Defamation is quite workable, since you get to disprove what was said. A humiliation case, on the other hand, is just going to pick apart the incident in all its gory detail.

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