The Humbug Martyrdom of Andrew Bolt II

Interlude: Ruminations on ‘the costs of speech’, monkeys and Dexter

In The 2013 PEN Free Voices lecture, reproduced on the ABC’s Religion and Ethics web site, Waleed Aly makes the following observations on Freedom of Speech:

… let us grind this out, beginning with a trite observation: that, in some sense, we are always free to speak. Even if our speech will land us in prison or before an executioner, there is nothing anyone can really do to stop us saying whatever it is we want to say. The only question is whether or not we are prepared to bear the costs of our statements. We can never escape those costs. Even an imaginary society with no legal restrictions on speech at all will still have mechanisms for making certain speech costly in one way or another. Only when speech is entirely meaningless to the audience can it have no cost, benefit or consequence (which is why swearing in a foreign language is nowhere near as crude as swearing in the dominant one).

Put simply, there is simply no such thing as free speech (original emphasis). There are only different costs. When we say we support free speech, we’re actually saying something very imprecise. What we really mean is that the costs of speech should not be imposed by the State, and where possible, social pressure should decide. (emphasis added)

This provides a convenient point of entry for a few issues that were raised in comments on the first post in this series which probably should be addressed before I go on with the writing of what was originally planned as the second part. I’m not entirely sure that part will eventuate.

My latest soundings of the twitterverse indicate the heartening possibility that the promised repeal of S(18C) of the Racial Discrimination Act is becoming an increasing liability for the Liberal Party; it seems that I’m not the only Australian to Bolt’s left on the political spectrum – a left which comprises every rational and mature adult in the voting population – who sees the proposed repeal as nothing more than a gift to Andrew Bolt. Still it’s worth continuing for the time being.

I think what triggered the writing of this series was the odious spectacle of Andrew Bolt fronting the IPA’s campaign for free speech[http://support.ipa.org.au/]. During Bolt’s rise to prominence as a blogger (under the able tutelege of Tim Blair alpha-marmoset of the infamous Flying Monkey Squad) it was well known, among bloggers and elsewhere that to offend Bolt was to invite the threat of defamation action – a hefty cost of speech – unless a retraction was quickly forthcoming.

I was myself once the recipient of such a demand and yes, it had the intended deterrent effect. And yes, that fact goes quite a way towards explaining my motivation for embarking on this series. But not the whole way.

Now that’s out of the way on to slightly more high-minded things. Although I was dismayed when I realised that I’d hit the Publish button instead of the save as draft button it soon occurred to me that I was in much the position that Dexter might delight in, if he came into his killing room and found a victim already strapped to the table for him. Not one provided by some anonymous guardian demon – one who had simply walked in, lain down, and then somehow contrived to all the necessaries with the duct tape and cling wrap. Because that’s what Bolt has done to himself by taking on the IPA gig.

Bolt has put himself, very publicly, in a position where he will have to practice the principles he professes. A position where he can’t publicly proclaim the virtues of freedom of speech while privately, or underhandedly through the manipulation of blog readers, doing his utmost to suppress the free speech of his political adversaries. It is just too delicious a temptation to put his capacity to do that through some rigorous testing and who am I to resist that temptation?

OK, that’s not a great lift in high-mindedness. But I have no less justification – and probably more – for believing that it’s in the public interest to test Bolt’s limits when it comes to paying homage to virtue as Bolt had for believing it was in the public interest to expose the rotten scam of pale-skinned fake aboriginals stealing the food from the mouths of really black children and the education out of their brains by taking the art prizes and academic scholarships that were rightfully theirs (the kids, that is). And if the whole repeal S(18C) campaign collapsed because, in the end, its poster boy couldn’t control his temper and sustain his pretence to principle until the Liberals were safely ensconced in power wouldn’t that be a glorious thing?

A quixotic dream maybe and not one I’d seriously hope to realise alone. But Bolt is no windmill – he’s a bullying blowhard who’s been foolish enough to put himself in a vulnerable position. I wouldn’t even claim to be the first to recognise that – at most I might be the first to state it in public.

Finally, a partial answer to David Walker’s question here:

Gummo: Do you think that this law is a good one, and if so, why?

Well, I have no objection to the inclusion of insult and offence as grounds for civil action under S(18C). Consider the following hypothetical case:

A young journalism graduate gets a job as a cadet journalist at a major metro newspaper (News Ltd or Fairfax, it doesn’t really matter). While in social conversation with another cadet she lets slip that she got through Uni with the help of a scholarship for Aboriginal students. She’s one of Bolt’s ‘fake’ aboriginals. Unfortunately for her Bolt is her fellow cadet’s idol, role model and inspiration for choosing the journalistic profession (and if you’ve chosen a Fairfax newspaper he’d obviously much rather be working at News Ltd).

He makes an insulting and offensive remark – no biggie. Something you can shrug off. Obviously they’re not going be on good terms from hereon, avoiding each other in the lunchroom, reluctant to take assignments together etc. But on those occasions when they do unavoidably meet in the workplace he always contrives somehow, especially in the presence of other staff, to find something insulting or offensive to her, or such a remark to someone else in a voice not quite low enough that he can’t be overheard.

I won’t elaborate the scenario beyond that – you can fill a variety of continuations and ultimate outcomes. He is clearly doing her wrong, and I think it desirable that she have legal redress for that wrong, should she wish to seek it. I’d add that I see no need, in a case of this nature, for the Federal court to deal with the matter. The magistrate’s courts in Victoria, for example, deal with certain torts and similarly in the Federal system there are other means to deal with these cases so there’s no need to go the full on wig and gown, top silks in the Federal Court route.

So, is it a good law? At this stage, I’ll say no more than that it isn’t the egregiously bad law that Bolt and his supporters make it out to be. It may well be a necessary law given the current social and political climate but please, no inquisitorial probing on that suggestion. It’s a matter that needs further consideration.

And now, I hope, back to something more closely approaching the oringinal plan.

About Paul Bamford (aka Gummo T)

Gummo Trotsky is the on-line persona of Paul Bamford. Paul recently placed his intellect at risk of finally becoming productive by enrolling in a Lemonade, Lime & Bitters degree via distance education. He also plays the piano but Keith Jarrett he ain't.
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Mel
Mel
8 years ago

Gummo, I think the aggrieved individual in your scenario should take the issue up with her employer. Her employer has a vested interest in resolving issues of this nature as quickly as possible to maintain team morale, productivity and to ward off a workers compensation for related psychiatric injury.

Research in the United States shows that affirmative action programs (a) overwhelmingly benefit middle class blacks who are arguably already privileged and (b) discriminate against working class whites. In the Australian context, it could perhaps reasonably be argued that urban Aborigines whose first language is English monopolise the benefits from affirmative action programs while Aborigines from remote communities who are ESL derive negligible benefit or none at all.

Accordingly, the person who is allegedly causing offence in your scenario may have his speech protected by RDA 18D(c)

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

Patrick
Patrick
8 years ago
Reply to  Mel

Well said Mel.

Sancho
Sancho
8 years ago

Bolt has put himself, very publicly, in a position where he will have to practice the principles he professes. A position where he can’t publicly proclaim the virtues of freedom of speech while privately, or underhandedly through the manipulation of blog readers, doing his utmost to suppress the free speech of his political adversaries.

Nope. The American right has perfected the art of doing just that, and Bolt will follow suit.

Without legal threats to deploy, Bolt will tread the well-worn path of claiming that disagreement with his assertions is censorship.

desipis
8 years ago

My biggest concern with s 18C is the same concern I have with the Goodes incident. There’s a lack of a knowledge (or intent) element. To have liability for any offence caused, I think it’s necessary that a person to at least be aware that their words could result in the offence. Ideally there should be some element of intent or negligence as well. An objective “reasonably likely” test seems like a way to punish innocent people for not having the same knowledge or perspectives the politically correct crowd do.

What we really mean is that the costs of speech should not be imposed by the State, and where possible, social pressure should decide.

If we’re imposing the costs of speech onto speakers, then why not make all offensive or insulting speech actionable? It seems odd to raise certain classes of people to being protected from insults or offence while leaving others to the mercy of rude individuals.

Sancho
Sancho
8 years ago
Reply to  desipis

That’s why much many criticised Bolt’s opponents for going via the Racial Discrimination Act when a defamation action would be more appropriate and set a broader precedent.

Sancho
Sancho
8 years ago
Reply to  Sancho

“Much many”. Freestylin’, yo.

Tel
Tel
8 years ago
Reply to  desipis

An objective “reasonably likely” test seems like a way to punish innocent people for not having the same knowledge or perspectives the politically correct crowd do.

That would be a problem is there was an objective test.

However, when Eddie Wazizname says “King Kong” it is perfectly forgivable no big deal, but when some 13 year old bogan chick says, “Ape” it warrants a police grilling (separated from her parents and guardians) and mandatory sensitivity training. There is no objective test, there is just yer basic double standard, one law for us and one law for them. When people make out Tony Abbott to be a monkey or George W Bush to be a chimp, that’s all par for the course.

Let’s not even get into the “Melbourne Free University” finding their website disappeared for reasons no one can explain, but you know that web filter was only there to stop the worst of the worst, kiddy porn and stuff. It was never ever going to be used to block political speech, nuh ahh, and pinky promise.

Waleed Aly can think what he likes, but there’s a world of difference between public dislike of what you say, and the machinery of the state coming down on your head. Only someone who hasn’t seriously thought this out would think otherwise.

Gummo Trotsky
Gummo Trotsky
8 years ago
Reply to  Tel

Waleed Aly can think what he likes, but there’s a world of difference between public dislike of what you say, and the machinery of the state coming down on your head. Only someone who hasn’t seriously thought this out would think otherwise.

Look who’s talking!

Tel
Tel
8 years ago
Reply to  Gummo Trotsky

You are suggesting that I have advocated use of state power to crush free speech?

Evidence?

Gummo Trotsky
Gummo Trotsky
8 years ago
Reply to  Gummo Trotsky

Think I’ll let that response go through to the keeper and take it as a sundry, Tel.

desipis
8 years ago
Reply to  Tel

Given s 18C of the Racial Discrimination Act doesn’t cover a criminal offence, it’s formulation is irrelevant to the actions of the police. As far as I’m aware Eddie faced significant public criticism for his comments, so I’m not sure you could say it was treated as ‘no big deal’. It would seem that if Goodes chose to take legal action then Eddie’s comments would be covered by s 18 C.

Of course his survival as the head of Collingwood is clearly inconsistent with the zero tolerance policy, making the whole charade about the girl’s use of the word seem like nothing more than hypocrisy.

Tel
Tel
8 years ago
Reply to  desipis

My understanding is that the girl was grilled by police, so perhaps I’m wrong about that (I was not there in person). I’m not up on the legalities of WHY the police got involved or which law applies but as the saying goes, “I don’t understand the law, I just enforce it.”

The Collingwood fan called Goodes an “ape” with only minutes to go in Friday night’s Indigenous Round game and was ejected from the MCG after a long grilling by police.

That was the report from the main stream media. Hence my mention of police involvement. I would presume such police involvement is selective just like all such enforcement is selective.

http://www.heraldsun.com.au/sport/afl/mcg-defends-treatment-of-girl-at-centre-of-adam-goodes-scandal-as-family-expresses-anger/story-fni5f3kt-1226650580225

Rafe
8 years ago

Gummo the scenario you paint of the young journalist does not really match the cases that Andrew Bolt complained about. Besides, that is precisely the situation of people with conservative leanings who are foolish enough to assert them in workplaces where most of the staff are of your persuasion, for example in the ABC and very large tracts of the Health, Education and Welfare services. But then maybe you think we deserve to be treated like that.

Sancho
Sancho
8 years ago
Reply to  Rafe

And the Oklahoma tornado was caused by government weather-control machines to raise taxes.

The pogrom against conservatives in the ABC and public service is truly terrible, and you can tell by the complete lack of evidence for it that the plot is top secret and extra evil.

Gummo Trotsky
Gummo Trotsky
8 years ago
Reply to  Rafe

Oh really Rafe? You may be right – I didn’t throw in any humiliation or intimidation although the effect of her nasty rival’s behaviour might, on occasion make my young female journalist feel the first. And possibly the last, if he had one of those snide wits that would make her feel alienated from her colleagues – and superiors – and therefore disinclined to speak up for herself. Then we’d have the full monty Bromberg found in Eatock v Bolt and therewith, your objection is answered.

As for your second point – wake up and smell your own bullshit. Your side of politics ran rampant during the Howard era, and will do so again if Abbott gets in as PM, all the time crying “Come and see the violence inherent in the system. Help! Help! I,m being repressed.” as you kick the living shit out of the body politic.

nottrampis
8 years ago

It is so hard trying to get to this blog at present.
Gummo both this and the previous one are in!!

Despite your Davidson like deleting!!

Rococo Liberal
Rococo Liberal
8 years ago

Gummo, your scenario is ridiculous.

What you seem to want is the law to decide all petty little disputes between people, as long as the plaintiff is a lefty and the defendant a conservative.

As a long practising lawyer I find sec 18C an abhorrence. It looks like it was drafted with a knife and fork.

The law is a wonderful instrument, but it will be blunted if idot governments try to use it for petty matters that are best solved on a social level.

Perhaps you should look up Lord Moulton’s discussion of the middle domain. You might then understand that Society and the State are two clear different things. Better still, you could stop being a folk-marxist, hunting for oppression where none exists and then calling for opression to right the non-existent wrong.

Gummo Trotsky
Gummo Trotsky
8 years ago
Reply to  Rococo Liberal

Gummo, your scenario is ridiculous.

Please expand – identify the features which you believe to make it ridiculous and how so.

In addition, I believe that Eatock v Bolt was a ridiculous case, resulting from the actions of a ridiculous man who put himself in a ridiculous situation. So your use of the term ‘ridiculous’ to describe the scenario doesn’t to me, amount to an objection of any consequence. Ridiculous things happen in real life as much – if not more so – as they do in the imagination.

Finally, I am getting heartily sick and tired of arguments that start from the premise ‘you seem to be …’ Granted this series (which was intended originally as a single post) has gone pear-shaped but, even so, there are times (like now) when I’d appreciate a little recognition of the fact that I’m trying to work my way through an evaluation of some quite difficult questions here and a little recognition that this just might be a worthwhile effort.

I think that’s a reasonable desire – not a reasonable expectation – because this is, after all, the internet where everybody engages ‘Sheldon Cooper Mode’ the instant they’ve entered their first keystroke but what the hell – that situation isn’t ever going to improve as long as we all continue to passively accept that it can’t improve.

Re Lord Moulton and the relation between the abstract entities ‘society’ and ‘state’. All I could say on that score, right now, is that sans society there is no state nor any of the other abstract entities that depend on it – such as nation civilisation etc. That leaves Margaret Thatcher’s most famous dictum looking pretty dodgy, on several counts. Please don’t take this final paragraph as ‘troll bait’. Demeans us both.

Mel
Mel
8 years ago
Reply to  Gummo Trotsky

RL is a cataplexy troll. Don’t waste your time on trash, Gummo.

Gummo Trotsky
Gummo Trotsky
8 years ago
Reply to  Mel

Thx for the tip Mel.

emess
emess
8 years ago
Reply to  Rococo Liberal

So, if someone in a hoodie turns up in the street making themselves obnoxious, then the law should turn up to address this petty little dispute between people wanting to go about their business peacefully and someone just wanting to express themselves. Whereas if the same person exchanges their hoodie for an Italian made suite in an office and makes obnoxious comments, it is ok?

Why should Andrew Bolt be treated any differently? Is it the nice tie he wears?

nottrampis
8 years ago

well Gummo it was a week to end all.

you copy Davidson and Poor Old Rafe ( could there be a more appropriate epithet) agrees with me on Adam Goodes. go read Around the Traps over the week-end.
Bloody good reading

nottrampis
8 years ago

By the way I is still saying ozblogistan is bloked or something when I try t get here via the normal way

nottrampis
8 years ago

wow Gummo copies Davidson and now RL is a troll because he has a different opinion.

This must be Catallaxy, right.

By the way it still says ozblogistan is blocked!!

David Walker
David Walker
8 years ago

The best argument against this law is probably still the one made in 2011 by Jonathan Holmes. Section 18C, although it appears in a statue supposedly about “racial hatred”, actually allows action against someone for speech that is “reasonably likely to offend, insult, or humiliate” – a very low bar. To defend against it (under section 18D) you need to show that you said what you said “reasonably and in good faith” – a very high bar. As Homes notes:

Justice Bromberg makes it clear that if you write something that has a tendency to offend on the grounds of race, but you want it to be considered reasonable and in good faith, you won’t necessarily get away with opinions that would in defamation law be covered by the fair comment defence – opinions that are extreme, or illogical, or which “reasonable people might find abhorrent”.

In other words, when you speak or write about race, the normal rules of vigorous debate are suspended. Holmes also notes that Justice Bromberg, in interpreting section 18D, particularly took aim at Bolt’s use of “derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides”.

But of course, Bolt isn’t the only one to use that sort of tactic in public debate. To find other examples, you won’t even need to leave this site.

Is the inclusion of insult and offence as grounds for civil action a good idea? It seems to me that it is not. Am I reasonably likely to be offended by people who say otherwise? That’s up to you to guess.

Mel
Mel
8 years ago
Reply to  David Walker

Hear hear.

Amusingly, if you look at the blogs of lefties who support RDA 18(c) in more cases than not you’ll find lots of language that is “reasonably likely to offend, insult, or humiliate”. The only thing that is different is the choice of targets.