Vilifying anti-vilification laws

Author and Fairfax columnist John Birmingham posts a truly delightful splenetic prescription for appropriate responses to the odious Andrew Bolt, in the context of current racial vilification proceedings against him by a polyglot assortment of prominent Aboriginal activists:

The appropriate response to Bolt is disdain and mockery and the poking of his readership with sharp sticks in their yellow, suppurating eyeballs. …

So what if he is read – and avidly so – by a veritable legion of mouth-breathing pinheads and shambling inbred fools, by barely closeted homophobes, and racists and the bottom-feeding scum at the foulest end of the rank, sour, stinking swamp that passes for public discourse on the far right?

Hear! Hear!11. KP: Although I appreciate a bracing serve of spleen from time to time, I also acknowledge that Birmingham’s polemic exhibits many of the same negative characteristics for which Bolt is rightly condemned. Moreover, to the extent that he slags Bolt’s readership rather than Bolt himself, it’s a little distasteful (even though I can’t help but be amused by the description). One suspects that most of the people who habitually agree with Bolt (or Alan Jones et al) are just fairly typical older Australians easily provoked to fear and loathing as a substitute for careful thought and analysis. That describes a fairly high proportion of the Australian public of whatever instinctive ideological stripe. []

It gives me an opportunity to clarify the blogosphere record in the wake of the stressful events surrounding Troppo’s withdrawal from the Online Opinion advertising consortium a couple of months ago.  I suggested at the time that the gay activist(s) who rightly took issue with a toxic comment thread at OLO would have been better advised to pursue proceedings under State anti-vilification laws than to orchestrate an advertising boycott of a valued online forum.  I was conscious at the time that this suggestion ran completely counter to my own philosophical position on anti-vilification laws in general, which accords fairly closely with Birmingham’s colourful advocacy.  I’ve written about the issue lots of times, including here, herehere, here and here.  To his great credit, ABC Media Watch host Jonathan Holmes appears to hold a similar view.

I remain of the view that anti-vilification laws are in principle objectionable to the extent that they go further than prohibiting any more than what the Americans refer to as “fighting words”.  Even then, only if a strict and skeptical objective test is applied to what amounts to “fighting words” and what doesn’t.  Otherwise liberal democratic freedoms would be reduced to the lowest common denominator of thin-skinned intolerance.

I’m conscious that this approach might be contentious with some, especially when only a week or so ago the appalling and inflammatory Koran-burning behaviour of a fundamentalist American Christian preacher led to the deaths of 20 people in Afghanistan at the hands of murderous Islamic extremists.  Under US constitutional doctrine, flag burning is constitutionally protected free speech ( see Texas v. Johnson, 491 U.S. 397 (1989) and United States v. Eichman, 496 U.S. 310 (1990)).  I imagine that burning religious texts, however idiotic, inflammatory and disrespectful, would attract similar constitutional protection and rightly so.  The appropriate sanctions against actions of that sort, as with Bolt’s odious rantings, are moral and social rather than legal ones.  Such sanctions are not necessarily any less powerful than legal ones.  In fact, as Birmingham suggests, taking legal action against calculating attention-seekers like Bolt in some ways just encourages them.  Mind you, The ABC’s erstwhile practice of giving Bolt air-time on Insiders, instead of more reasonable and serious-minded conservative commentators, rather undermines the force of any moral and social censure by granting him a status and respectability that he doesn’t deserve.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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17 Responses to Vilifying anti-vilification laws

  1. David Walker says:

    The central point of the Holmes article cited above is profound, and should be more widely known. Holmes points out that the legislation claims to prohibit behaviour based on “racial hatred”. He then notes that this is a lie – a lie written in legislation, but still a lie. What the law actually does is to make unlawful any statements that could offend certain people. The law then tacks on a gutless defence if someone can show that what they said expressed a “genuine belief” that they held.

    The outrageous result: people have to show in court that what they said was a “genuine belief”.

    I have no idea which of his views Andrew Bolt genuinely holds. I don’t care either. He certainly shouldn’t have to sit in the witness box proving that his beliefs are genuine. The quality of ideas ought to stand apart from their author’s intent.

    This law is a recipe for making Australians feel that they cannot have a decent debate about one aspect of their culture, history and politics.

    If someone wants to try to pass a general law against expressing hatred, let them try to enact it. But that is not this law. This law is a blight on the openness off Australian society, and it must be torn down.

  2. paul walter says:

    I don’t understand David Walker’s comment.
    Bolt is well-known serial liar and slanderer, who jawed off at some underclass somewhere that cant usually fight back, once too often.
    He’s not in court to justify his beleifs (if any) but to answer a case involving his cowardly bullying and slandering of a group within society that has suffered for generations because of lying paid slags like him and those at the Big End who pay him and his ilk, not least in the systematic and alibied ripping off of Aborigines for over two hundred years.
    This is a sick individual who delights in inflicting psychic pain on the defenceless, as do most have his tabloid “colleagues”.
    More to the point this is an individual who regularly himself tries to shut down commentary on issues like Palestine, so Bolt definitely is a “blight” on free speech, in his vile prostitution of the notion and it’s foundations.
    He’s not being showed up in court because he has the answers, but because he doesn’t have them, at least as far as these aboriginal people are concerned and what he’s said about them in the public forum.
    You can’t just continually lie about people and not expect some reaction eventually, surely?
    If he looks subsequently ridiculous for not being able to justify his slanders, more’s the pity he can’t cop something more than the embarassment of exposure, with a court case that will probably be payed off by his sleazy employers.

  3. Patrick says:

    Shorter PW: Free Speech I like good, free speech I don’t bad.

  4. Tel says:

    … the poking of his readership with sharp sticks in their yellow, suppurating eyeballs …

    A while ago we were wringing hands over how dreadful it is to advocate violence. Gosh, it is difficult to keep up with the shifting double standards.

    Holmes points out that the legislation claims to prohibit behaviour based on “racial hatred”. He then notes that this is a lie – a lie written in legislation, but still a lie. What the law actually does is to make unlawful any statements that could offend certain people.

    There’s a fundamental legal design principle of broad legislation followed up with selective enforcement, but the key is to figure out where the boundary lays. Probing out these limits is part of Andrew Bolt’s job (he works for a newspaper remember).

    More to the point this is an individual who regularly himself tries to shut down commentary on issues like Palestine, so Bolt definitely is a “blight” on free speech, in his vile prostitution of the notion and it’s foundations.

    Bolt does indeed has his own set of double standards, but at least he stays consistent on those. I challenge anyone to find an employee of Rupert who has harsh words to print regarding Israel… however, the moderators on Bolt’s blog do regularly allow anti-Israel and pro-Palestine comments from the hoi poli. The censorship on Bolt’s blog is very minimal, and that’s probably as close to free speech as you are likely to get.

    I mean, Bolt’s approach to free speech is rather better than saying, “if you read something I don’t approve of then I’ll poke out your eyes”, which is the Birmingham approach.

  5. Lloyd says:

    “The censorship on Bolt’s blog is very minimal”

    I think that’s complete bulls**t Tel. You’ll find that both Akerman and Bolt heavily censor what comments appear. I’ve posted inumerable rational comments on both and they’ve never appeared but frothing lunatic comments by others are published with gay abandon.

    The whole point of these columnists is to manufacture outrage, intelligent debate is a secondsary considseration if at all.

  6. Rafe says:

    Ken, are you serious or just being ironic?

  7. Mel says:

    “I’m conscious that this approach might be contentious with some, especially when only a week or so ago the appalling and inflammatory Koran-burning behaviour of a fundamentalist American Christian preacher led to the deaths of 20 people in Afghanistan at the hands of murderous Islamic extremists. ”

    As I understand it, the riots only occurred after Afghan president Hamid Karzai brought the matter to the attention of Afghans:

    “Nearly two weeks passed without incident after Mr. Jones and his congregation of about 30 followers burned a Quran in Florida on March 20. Then, on March 31, President Karzai made a speech condemning Mr. Jones and calling for his arrest. A day later, protesters stormed the UN compound in Mazar-e-Sharif, killing seven foreign employees and triggering demonstrations across Afghanistan that left a total of 22 people dead and scores injured.”

    http://www.csmonitor.com/World/Asia-South-Central/2011/0405/Why-did-Karzai-spotlight-Terry-Jones-s-Quran-burning

    As this isn’t Karzai’s first idiotic act and undoutedly it will not be his last, I view this as a good reason/excuse to withdraw from the hopeless mess in Afghanistan rather than a reason to restrict free speech. It would also be a great idea for the media to ignore Pastor Jones’ antics.

  8. Chris Lloyd says:

    I am sure no fan of Bolt (http://clubtroppo.ozblogistan.com.au/2006/10/27/tribal-colours/) but I find him strangely useful. He trawls the blogosphere for RWDB arguments on pretty much everything, thus saving me the distasteful trouble. He then grabs the best of them and presents them in a pretty strong journalistic style.

    In the case of climate change, using the best RW arguments and obfuscations available, he comes out looking damned silly. On some other issues, he dooesn’t sound so silly, even if he might challenge your cherished notions and sensitivities.

    Is there a link to the articles Bolt is being charged over – or are they now removed from the public domain?

  9. paul walter says:

    Geez Patrick, after I spent an entire para distinguishing between free speech and hate speech/slander?

  10. Tel says:

    I think that’s complete bulls**t Tel.

    Well, I’m going by the observation that many people who strongly disagree with Bolt do get published… I have no genuine scientific experimental data so it is possible that the controversy could be stage-managed.

    I’ll bashfully admit to having posted on Bolt’s blog a few times myself (rarely in complete agreement with Bolt, although I do appreciate his points on some issues). My posts tend to politely point out what others have overlooked or deliberately ignored, and most of mine do get through to publication. I’m neither Bolt’s harshest critic, nor biggest fanboi. I’ve noticed that they close comments completely on older articles, but fail to indicate that comments are closed (just that on older articles no new comments pop up at all). I would guess that the moderators have a fairly narrow focus on the recent and active articles, which presumably saves time and money.

    I’m not going to give any opinion on Akerman, I neither read his stuff, nor take the slightest interest in commenting on it.

    The whole point of these columnists is to manufacture outrage, intelligent debate is a secondsary considseration if at all.

    The whole point is to create a market for advertising space and thus earn a living. What else you would expect?

    I’ve found a broad mix amongst the Bolt commentators, some of them seem reasonably intelligent. That’s my opinion, you are of course perfectly entitled to your own.

  11. I attended a couple of the sessions at the Federal Court. Mostly him being self-pitying. I thought he had more guts. Still and all, the funniest thing about this is how he keeps on claiming to be “meticulous” in his research but has been caught out multiple times doing what all the hacks do – ignoring inconvenient facts, making a good story better.

    On the subject of comments policies: my wife tried to correct a factual error he made about her (he hadn’t bothered to read the article he was citing, but merely relying on second-hand information). The comment was, of course, never published.

    The best response to Bolt would surely be a website where people could crowd-fisk his articles, pointing out the lies and the omissions and the stunning ignorance he displays. Suing him just makes the pygmy into a martyr.

    PS I have to say, the law being used makes me uncomfortable – I take a Chomskyite line – “Stalin was in favour of free speech, for people he agreed with…”

  12. Patrick says:

    Dunno how good an idea that would be Dwight, pretty sure someone’s tried it to notably poor effect.

  13. Hi Patrick,
    sad to hear – would be grateful for any link you can dig up. That sort of “columnist monitoring” is difficult for multiple reasons

    a) they are being paid to spout drivel. You and your team are not being paid to fact-check/rebut/refute and you get tired after the initial buzz has worn off
    b) you’re giving them the oxygen (or rotten egg gas) of publicity. It’s a “don’t think of an elephant” dilemma

    I reckon though, that the money spent on these lawyers (unless they are acting pro bono?!) could have been spent on a site with micro-payments for the people doing the initial rebuttals. Some sort of wiki system for fact-checking the rest.

    And ALSO doing essays using Bolt as an example of the broader problems around media ownership, the nutjobosphere etc etc.

    It costs money (not that much) and it takes time and energy. But it’s the sort of thing that – if done with verve and humour – helps the “fence-sitters” see the tricks that Bolt uses. It’s the sort of thing that gives ammo to people so tha they are better able to “defend” their “pinko black-arm band” views at family gatherings (everyone has a dickhead uncle who reads Bolt like he was the Bible, no?)

    At the moment, the bloviator seems to be getting a free ride, no?

  14. Ken Parish says:

    See Boltwatch, run by “anonymous lefty” barrister Jeremy Sear and a motley crew of lefty bloggers. Even they eventually got sick of throwing obvious barbs at a target for whom the abuse of such people is a sign he’s achieving exactly what he aims at. Bolt isn’t stupid, he’s made a highly profitable career out of predictable, ideologically stereotyped provocations designed to outrage lefties and pander to the prejudices of a non-thinking conservative-leaning bogan and aspirational middle class cohort who in a few years will “graduate” to listening to Alan Jones on the wireless. They don’t want to be challenged to think or analyse anything at all, just to be reassured that their fears and prejudices are simple commonsense and that all those elite university types who think differently are just over-educated dickheads by comparison with Andrew’s evidence-free but self-evident truths on every issue (or at least highly selective, distorted and misrepresented evidence in the case of his stuff on Stolen Generations and climate change). It’s a great way to build a very large if undiscriminating audience and thereby become a highly paid media pundit. Bolt is a one trick pony but it’s a damn good trick.

    Mind you, some left-leaning pundits are almost as blatantly selective and unreliable (although I can’t immediately think of anyone on the left who’s quite in Bolt’s class).

  15. Hi Ken,
    thanks for the link. I think you’ve nailed Bolt’s motives and tactics there, very succinctly. Bolt is of course doing a “Gish Gallop”, as per the creationist tactics in the US.
    http://rationalwiki.org/wiki/Gish_Gallop

    And responding to such creative use of facts and factoids and, well, Made Up Shit, is a real challenge, especially when the audience has already made up its mind. Forgive me if you’ve already written on this, but what do you think are some of the ways to “win” the “culture wars”?

  16. This from New Matilda, an “apology” to Andrew Bolt, is kinda funny…

    http://newmatilda.com/2011/04/13/then-they-came-rightwing-opinion-columnists

  17. Jbells says:

    Your all faggots (no homo)

    [Thanks [email protected] – very helpful.]

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