As many of our readers are aware, the rather spiffy advertisements that–until recently–ran here (as well as on Larvatus Prodeo, Club Troppo and Jennifer Marohasy, to cover the political spectrum) were brokered by Online Opinion’s Graham Young. Graham–who both Legal Eagle and I consider a personal friend–is an internet ‘old hand’ who negotiated high quality Nielsen ratings for the blog as well as decent advertising remuneration. This matters, because (unless you are very lucky), Google ads pay very little.
If there is such a thing as a blogging ‘scale’, skepticlawyer was ‘medium-sized’. We averaged–and average–between 5,000 and 10,000 unique readers a week. Thing is, our readers are all ‘A/B’ readers. They’re lawyers, academics and policy wonks, in both Australia and the UK. The revenue from the ads Graham brokered paid off my Australian credit card as well as covering our hosting fees, the odd nice meal for all of us and high quality graphic design for the site. Jacques Chester–a hamster-wrangler and tech guru of real ability–landed himself a plum industry job based on his work as a programmer for several sites (known collectively as ‘Ozblogistan‘), including this one. My application for a scholarship at the Scottish Bar was held in high esteem thanks to the quality of this site. I wouldn’t be studying my Roman/Scots law conversion course without it–it would otherwise cost me £8000. I don’t know about you, but I don’t happen to have £8000 just sitting around.
Larger sites–Larvatus Prodeo comes to mind–were not only able to build marketshare and audience, but really contribute to intelligent political debate in Australia. LP (based on the ever-reliable Nielsen stats) is about 3-4 times the size of skepticlawyer. The fact that he’s built such a successful site is a credit to Mark Bahnisch and his team of writers. LP is a major place if you’re on the political left. Disagree with LP’s ‘party line’ if you must (we have, plenty), but Mark runs a tight ship and the quality of debate there is high. They’re not as anal-retentive as we are, but then, we’re lawyers and techies. We’re allowed (to be anal retentive, that is).
This is why (with some reluctance), it’s my duty to inform you that Online Opinion (and, by extension, the sites for which Graham brokers advertising) have become the victims of a secondary boycott. Secondary boycotting involves circumstances in which two or more people act in concert so as to engage in conduct that hinders or prevents a person from dealing with the target entity. It is illegal under the Trade Practices Act. The secondary boycott has its origins in a decision (by Graham as CEO of Online Opinion) to publish an article by Bill Muehlenberg attacking gay marriage.
Muehlenberg’s article is (not to put too fine a point on it) crap. In a nutshell, he thinks that the only form of marriage that has ever existed is ‘Christian marriage’, and that it has always and everywhere existed in the same form. And, oh noes! TEH GAY want to turn it into polyamory, or something…
I can quote you chapter and verse indicating the extent to which he’s got marriage wrong when it comes to pagan Roman law. I can even quote you the relevant Constantinian (ie, after 312 AD) legislation banning gay male marriage, as well as whinges and bitches from Jews in the first century AD about the Romans (and other people in the Empire) permitting Lesbian marriage. I can also quote a charming letter from an early 2nd century AD Roman centurion to two (married) women in Roman Egypt. Ten years earlier, he’d helped the ladies in question become mums, and now he’s got some leave, he’d like to visit ‘his’ daughter. He even asks how she’s going at school, and reveals that the men in his contubernium (a Roman ‘squad’ or ‘section’) are still as jealous as all get out about the fortnight in the sack he spent with two good-looking women.
Then there was the general ‘pagan double standard’. The Romans didn’t care about a woman being virgin or not before she married, but they did care about (female) monogamy in marriage (this is, in case you hadn’t noticed, deeply Darwinian). As long as he didn’t ‘screw around under his own roof’, then a Roman citizen male could bang who he liked. His wife could not. This was particularly the case if she ‘didn’t put out’. Roman law was very hard on rape in marriage, making it a crime, not a delict (tort). Christianity told men to be monogamous, but let them rape their wives. Christians can bury their heads in the sand until the cows come home, but deciding which legal regime is better for women is a no-brainer. As my Roman law tutor here in Edinburgh says, ‘the man who openly leches after you may not be your enemy; the man who wants to give you sexual dignity may not be your friend’.
There were other elements, too. Sometimes screwing around (for both sexes) was part of religious observance. In which case all the rules described above went out the window.
Put it this way, the Romans applied ‘Rule 34‘ of the Internet to marriage (caution, TV Tropes link). Even worse, if a form of marriage existed in the Roman Empire, there was probably a religion built around it. They had more religions than the Yanks have cable channels. Seriously. Marriage forms in different religions included: sibling marriage; cousin marriage; public sex; and a bit more public sex (nicely covered in the BBC/HBO series Rome, in this case tied to property law and transfer of title); temple prostitution (both sexes); polygyny; polyandry; polyamory (people routinely contracted around Augustus’ marriage laws–designed to encourage monogamy–as the jurist Modestinus documents). You get the idea. The Romans had a large multicultural empire to run. As Gaius, the greatest of Roman jurists remarks ‘marriage is universal, but its forms are contingent’ [D. 1.9.1].
In short, marriage is a lot older than Christianity, and has operated perfectly successfully under different rules (often less sexist or homophobic than Christian or Islamic rules, sometimes more) in other systems. And we are all still here. Deal with that fact, peeps.
Then, after I’ve done my bit, Lorenzo our resident medievalist will no doubt turn up and document the extent to which Muehlenberg has got it wrong when it comes to the medieval period.
In short, Muehlenberg is a legally illiterate dill.
That does not mean, however, he should be silenced. It particularly does not mean that Graham Young, Online Opinion and by extension all the blogs Graham brokers advertising for should be taken to endorse anything or everything Bill Muehlenberg says. That, my friends, is straying into secondary boycott territory.
It is important to remember the distinction between primary boycotting and secondary boycotting, which is destructive precisely because it is so sloppy, generating collateral damage. For example, assume that a group has a complaint against the Acme Company. Assume further that the Widget Company is the major supplier to the Acme Company. If the complaining group informs the Widget Company that it will persuade the public to stop doing business with the company unless it stops doing business with Acme Company, such a boycott of the Widget Company would be a secondary boycott. The intended effect of such a boycott would be to influence the actions of Acme Company by organizing against its major supplier. I hope it is clear from this why secondary boycotting is much nastier than primary boycotting, and why the law takes such a dim view of it.
Gay rights activists have taken a set against Graham’s willingness to publish material from all sides of the gay marriage debate, and now the ugly shit-fight has made The Australian. They are trying to drive Graham broke, and they don’t care who gets burnt in that process.
It was only a matter of time.
In today’s paper, Christopher Pearson comments:
When I spoke to him on Wednesday, [Graham] Young said it wasn’t the first time advertisers had made life hard. A group called Ethical Investments had objected after their ads sometimes appeared on pages alongside articles questioning anthropogenic global warming. [Legal Eagle wrote one of those; I remember the ads].
On account of the Muehlenberg piece, Young told me two major advertisers had just pulled out: the ANZ Bank and IBM. Comparing this year’s January gross ad sales with last year’s, he calculated that revenue from his main category of advertising had fallen by 96 per cent. Young is worried that these bizarre decisions will adversely affect other websites as well as his own and could even lead to some of them closing down.
Courts might construe that as the result of an indiscriminate secondary boycott, in contravention of the Trade Practices Act.
That’s because Young and a group of other political sites have formed a network called The Domain, to bundle up their readers as a more attractive package for advertisers. The sites are very diverse in terms of ideology, from the ultra-leftist John Passant, to the more mainstream centre-Left Larvatus Prodeo, Club Troppo, Andrew Bartlett, skepticlawyer and the likes of Henry Thornton and Jennifer Marohasy.
Do read Pearson’s piece; it’s a good and careful documentation of something that this lawyer has long suspected was coming: a straight-up, bald conflict between the Trade Practices Act and internally developed hate speech and advertising codes. It is something about which we as a society will have to make a call. Personally, I think that the hate speech and advertising codes will have to go, because I think that markets subject to law are more civilising than social practice subject to law. Pearson gives me more credit than I deserve at the end of his article, but even so, his point is a serious one. I’ve long suspected that people from groups who perceive that they’re oppressed need to ‘man up’. People who haven’t liked me or something I’ve written have variously (a) stalked me (b) sent me postpaks of dog shit (c) rung around to ensure that I don’t get any more work (documented in Mark Davis’ Gangland: Cultural Elites and the New Generationalism) and (d) made me the victim of serious physical assault. I’ve coped with it all and come out the other side. And if I can (with no advantages to speak of), then so can you.
If you don’t like Online Opinion publishing stuff by Bill Muehlenberg, then complain with candour, not with a secondary boycott. If you don’t want to be stereotyped, then don’t behave in ways that fit the stereotype. That means, if you’re a gay man, don’t be a bitch. Above all, fight freedom’s cause in freedom’s way.
Let me explain.
One prominent UK Tory I’ve come to know over here has given me a clear example of how fighting for freedom’s cause in freedom’s way operates in practice, and what happens when you do the opposite.
This Tory once made some mildly anti-abortion remarks in a speech. Those remarks found their way to anti-abortionistas in the US. This meant he received–over a period of months–thousands upon thousands of letters from anti-abortionistas in both the UK and the US. Eventually, the latter came to outnumber the former. He had to hire a second secretary to deal with correspondence from what he called ‘the green crayon brigade’ so he could properly represent his own constituents separate from abortion as ‘an issue’. Most of the ‘green crayonistas’ came from the US. The secretary he hired to deal with them was paid for by the British taxpayer.
Over time, he came to resent their desire to drain him of time and (taxpayer’s) money a great deal. So much so that he has changed his view on abortion. ‘If you have to argue your case like that, then there is likely something wrong with both you, and with your cause’. He is no longer anti-abortion, supporting abortion up until birth without restriction.
The gay rights activists secondary boycotting Graham Young and Online Opinion could learn from his story. It breaks down like this:
Not everyone will accept you (get them to tolerate you, and you’ll be doing fine). Many people will still want to mock you (the Romans tolerated gay marriage, but much of their humour involved taking the piss out of ‘the man in a dress’; read Martial if you want good examples thereof). Apart from this, those of us who do support gay marriage can be turned off by bad behaviour. One of the reasons why Martin Luther King and Harriet Taylor Mill were successful in their claims (race; gender) is because they asked for those rights nicely. And there is a reason why Malcolm X and Andrea Dworkin are still roundly excoriated: good manners go a long way. Asking nicely and fighting fair are very important, unless one wishes to be consigned to the outer darkness.
Finally, why is secondary boycotting so nasty? Primary boycotts are an economically efficient way of managing differences of opinion, because they are precise. They attack a single person without violence. Secondary boycotts, like the ill-targetted bombing campaigns so hated by anti-war leftists, are replete with collateral damage. They don’t just excoriate Bill Muehlenberg, but Graham Young, Larvatus Prodeo, EnPassant, Jennifer Marohasy and Ken Parish, Helen Dale, Deus Ex Macintosh, Mary-Helen Ward and Katy Barnett. People who might otherwise be on your side…
…if you weren’t such an asshat.
64 Comments
Oy vey! I’m shocked. No, I don’t like Bill Muehlenberg’s views. I agree with almost nothing of what he said. I think gay and lesbian people should be allowed to marry, and all that. But…he has a right to express his opinion, just as I have a right to say that I don’t agree, and point out where I think he’s wrong.
A secondary boycott is not a fair way to argue your point. I dunno, I’ve never been a very good activist in this regard – I prefer reasoned argument to the grand guignol gestures favoured by activists of all stripes. Behaving like a pork chop is a great way to put me off you and your argument.
My favourite quote from Pearson’s article is:
Quite. I’m proud to blog with you, mate.
I find it surprising that ANZ banking and IBM have taken the high moral ground in the debate on gay marriage.
As they have chosen not to be associated with a solitary view, will they now adopt this approach to all their customers demanding they declare theirs?
Totally gratuitous bit of hate-speech both homophobic and misogynistic. Shame on you scepticlawyer.
I too noticed the piece by Christopher Pearson in today’s Oz. Even though I am not a supporter of Gay marriage I agree with you that the sort of attack upon someone airing an argument against Gay marriage is rather despicable. But even if I were a supporter of Gay marriage I would think that this sort “action” is ultimately counter-productive and it will just end up alienating many of those who are ambivalent about the issue. This is a matter where persuasion will be a better course of action than brutish intimidation and attempts to silence those of us who think that marriage is by its very nature a heterosexual institution.
I’ve let that comment by harleymc through because it’s just so… illustrative. In fact, it’s so illustrative it may be deliberate, in which case harleymc wins a comedy gold star.
Look, I think it’s all a bit disingenuous. The article is obviously wrong and offensive so why publish it? Sure there’s a free speech issue but no one’s stopping our “pro-family(??)” bigot from putting his bilge out there. The advertisers made a decision in their own self interest, that is they feel that associating themselves with this type of commentary puts them at risk of losing market share. Likewise Graham Young (hardly a “mild conservative”) thought he’d stir the pot a bit and got bitten on the bum, not the first time a smartarse stunt has unintended consequences. If the advertisers feel it’s worth it then maybe they’ll come back. I’d suggest being a bit more careful with the whole contrarian play. It hasn’t really worked for The Australian.
SL my response to your post was to proceed immediately to your tip jar. By sheer coincidence the chairman of one of those advertisers, and his good wife, are clients and friends, and I will raise this with them shortly. After all – what are friends for, if not to be totally honest with?
If/when ever you decide, as Christopher Pearson suggests, to “have a field day” please put me down for 10 tickets, or a season pass.
ps: what is homophobic or misogynistic about “asshat”? We all have one or both, and occasionally act like same, I have thus far thought?
Here is a link to my pre-emptive response to the fake free speech argument I thought Pearson would make and the need for struggle to win gay rights. (http://enpassant.com.au/?p=9276). It’s called ‘The fight for equal love’. What irony that The Australian, which doesn’t publish me, and lambasted the Financial Review for doing so, turns into a defender of free speech. Give me a break.
Good grief, where to start.
First, equal protection of the law is a good reason NOT to have hate speech laws. These things are never equal in application or coverage. Some ‘hate’ or ‘offense’ always counts more than others.
Second, Online Opinion is precisely about that: a vehicle for expressing opinion. It does not have an opinion line and it is ludicrous to target it as if does so (or expect it do to so), let alone thereby penalising such a varied range of blogs.
Regarding the medieval evidence, it took the Church quite a lot of debate to decide that consummation was necessary for marriage, which makes contemporary natural law theorists making such a big deal of penile-vaginal sex as an “obvious” defining feature of marriage amusing. While Saint Aelred, Abbot of Rievaulx had this to say, in his On Christian Friendship on Jesus and St John:
Then there is the fun dispute over Orthodox rites of same-sex boding.
Third, Muehlenberg is very intellectually low rent. A task I keep putting off is wading through his stuff and documenting how intellectually poor it is.
He has the same problem that anti-Semites had when granting Jews equality before the law was a fraught issue: invoking a large majority against a small and vulnerable minority can so easily be portrayed as the monstrous bullying it is (or seeks to be). So, anti-queer activists such as Muehlenberg use exactly the same tactics as anti-Jewish activists did:
(1) Claim there is a single view and purpose among said group (hence all homosexuals have the same purpose regarding marriage, according to Muehlenberg).
(2) Claim that they are actually powerful group, not a small and vulnerable minority at all (which the secondary boycott nonsense just feeds).
(3) Claim that they are fundamentally perverse by nature (so, gays aren’t monogamous: of course, lesbians notoriously have stable monogamous relationships, but we just ignore that, as we do heterosexual infidelity and the argument that promoting monogamy is precisely a reason to extend marriage).
(4) Claim that they have enormous corrupting power. Hence allowing same-sex marriage will profoundly change society. The historical evidence, as SL cites, is that is nonsense. But Muehlenberg does not want to consider evidence that the endless war against human sexual diversity he advocates is a pointless and destructive war (except for the purpose of promoting the prime benefit of bigotry — selling effortless virtue and selling oneself as a “gatekeeper of righteousness”).
Arguments for equality for any group usually display two broad approaches:
(1) This society/institution is fine, it should just stop excluding us and will continue to work fine if we are included.
(2) That we are excluded shows this society/institution is deeply flawed and needs to be replaced/restructured, which our inclusion/liberation will be a lever to do.
Arguments against granting some group full membership of the moral community and equal protection of the laws regularly use advocacy of (2) to argue that (1) cannot happen, which is precisely what Muehlenberg is doing. The evidence is, again and again, that there is a great deal more continuity than profound change when exclusions are lifted. Giving Jews, Catholics, Protestants, blacks, women etc equal protection of the laws did not undermine the basic structures of society. On the contrary, it improved access to their talents and stopped wasting resources on exclusion. Giving votes to women made politics more responsive to their concerns, but the continuity in basic patterns and structures clearly far outweighed changes beyond such responsiveness.
But, since the entire argument for exclusion typically rests on “they are not adequate/proper versions of the human”, the opponents are bound to, in effect, agree with the radicals and deny the case of the just-includers. As the claim of the excluders is, in fact, profoundly wrong, the reality of common humanity again and again proves to trump claims of special identity and produce far more continuity than change.
As it will here, as the anthropological evidence makes quite clear. But Muehlenberg is not interested in evidence except when it is convenient.
Yes, of course he is pushing a bigoted line, but bigots ALWAYS claim to be defending moral decency, because bigotry is always and everywhere a moral claim: it is a claim about who is in and who is out, who is up and who is down, in the moral community.
Secondary boycotts just feed the notion that he and his are Heroic Fighters Against A Force of Great Corrupting Power which anti-queer activists make in the same way and for the same reasons anti-Jewish activists make. But it is easy to knock over Muehlenberg’s arguments, which makes feeding the noxious analysis of social dynamics his sort of activism feeds off all the more deeply stupid and self-defeating.
all ‘A/B’ readers. They’re lawyers, academics and policy wonks
um, not all, some of us dingbats out here in the backblocks try to follow ..
.. and the Court Martial of Breaker Morant is still current
damn .. rule 303.
[ED: FIXED. DOUBLE-FIXED: ADMIN DEM]
“Secondary boycotts just feed the notion”
What 2nd-ary boycott?
Davo, glad to hear it. Personally, my aim in blogging is to get discussions about the law out there to non-lawyers. I think a lot of lawyers don’t bother to explain it properly.
Patrickb, I thought SL’s explanation above was pretty clear, but see Wikipedia on secondary boycotts. It’s where one industry not directly concerned in the business of the other decides it is going to strike in sympathy with a third party. So in this case, the advertisers are boycotting Online Opinion not because they have any direct involvement with gay activism, but because they wish to express sympathy with gay activists who object to Muehlenberg’s views being published.
I’m sorry to hear about the secondary boycott. Marriage is such a boring subject about which to become so gangrenous. I would bet London to a brick that every child born this week called Yasi has parents who are not married. Most young heterosexuals elect not to marry before living together and procreate. It is only the godbotherers and homosexuals who go on about it. But then I see it from a social rather than a legal view. Folk will do as folk will.
(PS. i did try to ‘click’ on one of the ‘advertisement” sites on this blog site. was given a blank screen with a little thingo at the top telling me .. um can’t describe it .. little rectangular thingo with a green thingo travelling from left to right. gave up watching it after five minutes, went orf and had a crack at the ‘computer’ chess while waiting. Eventually became bored and closed computer down.
Here’s a hypothetical. Let’s pretend Bill Muehlenberg’s name is actually Bilal Mullah, and every time he mentions the word Christianity, we substitute the word ‘Islam’. This is what gets me… If there were an article by Bilal Mullah, you’d have many of the Left supporting him (because he’s a religious/ethnic minority rebelling against the majority Western paradigm), and many of the Right baying for his blood and saying he was a homophobic bigot who was against Western values. However, all we’ve done is change his name and the name of his religion, not the substance of what he’s saying.
As far as I’m concerned, Bilal Mullah has exactly the same rights as Bill Muehlenberg – he has the same right to publish his religious view, and I have the same right to say that it’s total piffle. I strongly believe that a society with gay marriage can be moral and ethically sound.
Davo @ 16 – LOL.
Garpal – well that’s the irony – homosexual people campaigning for something that is not necessarily wanted by heterosexual people any more!!!
That being said, I like being married. I didn’t think it would make a difference and never intended to marry until I met my husband (“just a symbol, the feelings don’t change”). However, it was really quite nice, and I accepted with alacrity when he proposed. I have some gay and lesbian friends who would dearly love to be married, and now that I’m married myself, I can understand why they want that, because I’d like to celebrate their commitment too. In fact, I’ve said that they should enter into a contract anyway (which is what I basically believe marriage is anyway…see ancient Romans and Jews in the present day).
Personally, my aim in blogging is to get discussions about the law out there to non-lawyers
O, this site does .. just takes a while for me to figure out what it’s on about.
Cheers and best wishes
D
HAHAHAHAHAHAHA! That’s what my husband says too, Davo (he’s NOT a lawyer).
Garpal, that’s a good one – parents naming their kid after a cyclone. One of the best chapters in Freakonomics discusses the link between the names parents choose, social class and economic outcomes. It is both very funny and… kind of pathetic.
@14,
Some some actual Australian case law on secondary boycotts. Have a read and then see how your case looks. And and how are the gay activists engaging in trade or commerce? That’s on of the things about the TPA, it’s very strictly restricted to trade and commerce. Now read on …
“A secondary boycott involves action by two or more people acting in concert, which prevents a third party, such as a potential customer or supplier, from dealing with or doing business with the target.”
That definition comes in connection with a case to do with the CFMEU, http://www.accc.gov.au/content/index.phtml/itemId/773130
In that case “the union officials hindering or preventing third parties from supplying concrete, sand and related services”
@17,
That’s a bit silly, saying that by changing his religion the left right discourse would be reversed. Also you make the mistake again of claiming that there is some sort of right to being published. He certainly has a right to free speech but I don’t see how he can claim that a publisher must publish his work. That’s up to the publisher. In this case he was published, the work was inflammatory and provoked a strong reaction. I don’t think there’s any role for the TPA at all. You’re grasping at straws. Do you have any case law support your claims? The nearest I can see in this country was AWI v PETA but I don’t think that made it to court.
Oh hell… agreeing with those normally of a small-government persuasion here on so many aspects. Shock! Horror.
Bummer about you guys being hit in the wallet, and OnLine Opinion et al.
On the gay marriage thing – I don’t see why a government that doesn’t actually *use* marriage (de facto for things like centrelink payments) should have a marriage act AT ALL. Leave the name to be defined by whatever group wants to define it in their own context.
And by de-facto marriage, I also include de-facto divorce. I was long-separated from my ex-wife, neither of us having bothered with divorce proceedings, we ended up sharing a house when she was homeless and pregnant.
We still hated each other, and Centrelink recognized this, even though we shared a child, and I was godless-godfather of her second, even though the marriage certificate was still kinda valid in an odd way and lived in the same house, Centrelink gave her full unemployed benefits as a single, and of course I, in permanent employment, got nothing.
So… marriage means nothing to centrelink either way.
Am I, the big-government advocate, on this issue, more small-government than my small-government friends here on this?
Patrickb – no, of course there’s no right to be published. But if Online Opinion wants to publish him, I think they should be able to do so without suffering this kind of action. Particularly given that they’ve published material presenting the diametrically opposed point of view, and that they allow people to comment and point out the flaws with Muehlenberg’s article.
You don’t think the left-right rhetoric would be reversed if it was Bilal Mullah writing? I’m pretty sure it would be. And I don’t look kindly on either side for its hypocrisy. I hate those tribal, knee-jerk reactions.
I didn’t write the post, so I’ll let SL field your technical legal questions, if she so wishes.
LE@17 Yes, my point about the hypocritical noxiousness of hate speech laws and codes precisely.
As for marriage being outdated, I just came back from an engagement party and continue to notice wedding cars and photo ops around the traps.
Hi sceptical lawyer; are you sceptical about AGW?
The corporate world are so craven but at the end of the day; I don’t think ANZ made an ethical decision but a cost assessment.
I am fascinated why gays would want to adopt a mainstream status in a society where uber individuality is de rigueur; cakes and eating it too?
@24 Centrelink uses the phrase “Member of a couple relationship” now.
You call THAT piece inflammatory?! My, what a delicate little soul you must be Patrickb there’s a lot worse anti-gay-marriage rhetoric out there from the Crispies*.
Most prominent attempt at secondary boycott over here in the UK has been the Huntingdon Life Sciences cases, where animal rights protestors targetted HLS suppliers (because the company conducts animal testing) including their bank, insurance companies, stationery and transport suppliers as well as actual company employees AND the farm that bred their test guinea pigs.
Several more went down last month. Now obviously in these cases the actions they took were actually criminal (blackmail, assault, grave-robbing) but there was some pretty standard secondary boycott work as well – picketing the US-based bank funding the company to scupper an attempt to ‘list’ HLS on the stock exchange for example.
[*Yes, though avid blog readers will know that I'm a pretty committed christian myself - I seriously doubt Muehlenberg agrees that being a Quaker counts - but I've always felt really uneasy about those who will only listen to "Christian" music, or patronise "Christian" businesses, or possibly only eat "Christian"-brand Crispies: guaranteed no fornication on the manufacturing premises!]
@25
Yes well, it was more the legal technical questions that I was interested in. The TPA is a blunt weapon and thus you need a fairly clear set of facts to support your action. Nonetheless it may be possible but whether it would be worth it? And think of the public policy implications. And again I’d stress that on the facts all behaviour appears to have been voluntary. Difficult to plead some sort of coercion.
@29,
Hmm not sure from your post whether you think that the secondary boycott argument in this case is relevant. It’s a bit like your pathetic ad hom, I feel like I’ve been attacked by a dead sheep. Grow up will you. I mean this is just pathetic: “the actions they took were actually criminal [which is not at all the case in the matter before us your honour]“. I mean you’d stand up in court and actually say something like that? Let me know when you’re appearing, should be a hoot to hear the beak’s response.
yep, noticed the edit @ 11,12. stet.
As unfortunate as the situation is, I think the quandary is one inherent in the business of publishing funded by advertisement. The product must satisfy two different groups: the primary consumer will demand certain types of content, and the advertiser will demand their message gets through. If either of these demands interferes with the other (e.g. an intolerant opinion piece having a negative effect on an advertiser’s brand), I don’t think it’s right to compel either party to continue to do business with the publisher. Even with a publication as admirable as Online Opinion.
The problem I see with an application of the TPA (or Competition and Consumer Act as it is now), would be that the secondary boycott section requires that there be a purpose to cause harm. I think it’d be difficult to demonstrate that the advertisers in question were acting with the intent to prevent Muehlenberg from publishing his work, rather than to simply protect their brand.
And a side note: seeing the legislation has a section numbered 44ZZOAAA makes me think those people claiming we’re over regulated might just have a point.
What follows is a quick and dirty run-down on how Australian competition law in this area operates. If I’ve left something out I will try to answer people’s questions, but I am not in a position to provide legal advice, as I no longer hold a current Australian practicing certificate (don’t worry, I will know when a question shades across into the seeking of legal advice). Before I do this, however, I’ll make one point:
I don’t think this is about free speech, or if it is, the free speech effects are incidental to a particular form of anti-commercial conduct. The reason I gave a ‘factory making widgets’ example in the post is because secondary boycotts are almost never about someone’s opinions. Historically, they have arisen in the context of labour disputes and environmental campaigns… and the reason the book has so often been thrown at unions and greenies in days gone by is not because unions and greenies are especially anti-competitive in their behaviour. It’s because it’s damn hard to hide a picket, and even when there is more secretive behaviour (deals cut with third parties not to supply the factory using ‘scab’ labour, for example), it’s usually pretty obvious what’s going on, the affected company (or the ACCC) brings suit, and the offending arrangements the union or green group has made are exposed during the discovery process.
So, here goes (if you don’t like long legal-ish comments, then feel free to skip this, as it will break Pavlov’s Cat’s ‘three paragraphs rule’ big style).
1. It’s important to remember that Australian competition law is currently in a state of flux. On January 1, 2011, the Trade Practices Act 1974 was renamed the Competition and Consumer Act 2010. This wasn’t a mere renaming, however, as many provisions have been moved, the old Consumer Protection laws have been shifted to a new, special schedule of their own, and the ACCC has been given more ‘teeth’, particularly in its ability to bring representative actions. A very handy summary of the renamed and rejigged sections is available here (AAR is a seriously good firm when it comes to competition and consumer law):
http://www.aar.com.au/pubs/comp/focompfeb11.htm
I’ll continue to use ‘TPA’ in this comment, but do remember that’s only for everyone’s convenience, and that the Act has changed; the famous section 52, for example (‘misleading and deceptive conduct in trade or commerce’) is now s 18. The new act is here:
http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/index.html#s151am
A neat summary of ‘representative actions’ (making it easier to complain to the ACCC and then get them to act) is available here:
http://findarticles.com/p/articles/mi_qa5393/is_200710/ai_n21298477/
2. Very generally, the TPA applies to corporations, not to private individuals, particularly in many of its consumer protection provisions. That’s why — so that individuals can’t get away with this stuff — the states have enacted various Fair Trading Acts, which mean that the same rules apply to natural persons — ie, you and me, not just XYZ Ltd. This is designed to catch everyone from the local newsagent to community organisations. It’s important to remember that anti-competitive behaviour is not just something that corporations do, and that it doesn’t always arise in the context of trade or commerce.
3. Sometimes, however, the TPA applies to both natural and juridical persons. The relevant secondary boycott provision is an example of this:
http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s45d.html
As a general principle, this application to individuals is not under the Corporations Power [Section 51(xx)], but under the Interstate Trade and Commerce power [s 51(i)]. Now I happen to think that the creeping accretion of power to the Commonwealth under these s 51 ‘heads’ (especially the Corporations Power) is a Bad Thing for Australia’s ‘Federal Compact’. But: I don’t make the rules, the High Court does, which means that things like ‘person’ and ‘in trade or commerce’ are no longer construed as strictly as they once were. I suspect that, were David Fasold & Anor v Allen Roberts & Anor [1997] FCA 439 [The 'Noah's Ark Case'] litigated today, the outcome would be different.
4. Like all potential disputes, any litigation on this issue, however brought, will turn on facts and evidence. I will say that the statement from ANZ’s PR person was, um, unwise. If I were the other side, I’d want discovery of every bloody document leading up to that decision to see whether secondary boycott could be prima facie made out on the facts. IBM has been better advised, which is why their response — to use Pearson’s rather apt expression — was so ‘gnomic’.
5. I have no doubt that decisions made as a result of pressure brought to bear thanks to secondary boycotting are routinely dressed up as bog standard commercial decisions. And that’s inevitable. Litigation isn’t fun (except, maybe, for a certain sort of lawyer), and lots of organisations — corporations, activist groups, unions, associations, etc — work damn hard to stay out of court.
6. All jurisdictions of which I am aware permit secondary boycotts when these are undertaken by consumers. These are the fairly standard ‘don’t buy Japanese tuna, they hunt whales’ style of secondary boycott. They are permitted, I suspect, because they do not work, except (perhaps) during the lead up to conflict. Some jurisdictions (an example is France, under the Code Civil) allow trade unions to make an application to the relevant competition body in order to be permitted to engage in secondary boycott. This is restricted to labour unions, however, not commercial entities or activist groups. The rationale for this is that unions are pretty open and honest about who they are going after and why… it is, as I’ve said, hard to hide a picket.
7. A final, non-legal point. There seems to be a perception that if a group is disadvantaged in some way, or a minority, or ‘Club Virtue’s’ flavour du jour for whatever reason, that status automatically buys it the right to stomp all over the rule of law and behave with extraordinary incivility. Um, no. The oppression has to be pretty damn serious in order to activate the presumptions made by the likes of Martin Luther King in Letter from Birmingham Jail and Henry David Thoreau in ‘Civil Disobedience’. Otherwise, protest and activism risks being rendered meaningless and trivial, and when there really is a serious derogation from fundamental civil rights, the majority response to yet another species of carry-on is likely to be ‘oh, them again, they’re always going off half-cocked’.
/Now I’ll just let myself out of the spammer, what with all those links.
HIS HONOR, Sir Schnozzle (Law Lords): “You are a cartoonist of mean aspect and have been well advised to stay away from a career in law. We find the charge of necrophiliac bestiality… not proven. You are hereby released and banned from keeping livestock for the next five years. Case dismissed.”
(You have noticed SL and I are different people, right..)
[ADMIN--we can't make this show in the comments, but it is pretty funny]: http://skepticlawyer.ozblogistan.com.au/files/2011/02/marriage.jpeg
LE:
“But if Online Opinion wants to publish him, I think they should be able to do so without suffering this kind of action.”
Sorry but this is bollocks. Young deliberately and wilfully published lies and distortions that were crafted to bring a long tormented minority into disrepute and contempt. Young thought he was on a winner but things backfired. Stiff biscuit. If you lie down with dogs don’t be surprised if you get up with flees etc…
LE, would you let me publish my comments here if I deliberately and wilfully vilified people with cerebral palsy? I should rather very muchly deeply think not. And don’t tell me it’s not the same because it bloody well is. The fact that you’ve sustained a little collateral damage is too bad. It really sucks but such is life. Maybe you should choose your friends more carefully.
SL says:
“Asking nicely and fighting fair are very important, unless one wishes to be consigned to the outer darkness.”
I’m not convinced by this either. Christianity, for example, did not become the dominant religion due to meekness. As Jesus himself said “I come not to bring peace, but to bring a sword”. And the believers surely did follow this commandment with an alacrity reserved for no other commandment.
I would also wager that the likelihood that this action by the “gay lobby” constitutes a secondary boycott within the meaning of the relevant legislation is about zero.
Settle down, thanks ladies.
Mel, you’ve often vilified people and gone off half cocked on this blog. We haven’t banned you. Yet.
Settle, petal.
SL:
I’m afraid if Christopher Pearson is with you, I’m almost sure I’m against you. It’s a gut reaction kind of thing really, but for just a few reasons, see, for example this for a taste, and especially this nauseous passage:
I’m not sure exactly on what basis Pearson claims here that Bray CJ abstained from breaking the law at great personal cost, though see here for Pearson doing a Bosie, which is really what makes the last claim to a “degree of sympathy” particularly stomach-churning.
OK, that’s my disclosure of antipathy.
I can’t say that I can see in Mr Pearson’s article the “good and careful documentation” of a secondary boycott which you seem to have spotted. Is it possible that some blogger with expertise at the bar and a gift for self-promotion might have suggested something of the sort to Mr Pearson? Given his agreement with Muehlenberg’s views, one can well imagine Pearson being receptive to such a suggestion.
So I guess I’m with Patrickb on the legal technicalities, even if he seems to have mixed up SL and DEM in his retort to DEM @31.
Incidentally, in what I take to be an act of international nominal harmonisation, the relevant legislative prohibition is now section 45D of the Competition and Consumer Protection Act 2010.
PS:
Some of my comment is overtaken by SL@35 and DEM@36, but I would still like to see SL spell it out strictly in terms of the section (not expecting DEM to do this).
Marcellous, Pearson really seems to get people’s backs up, and apparently he did when he was at the Adelaide Review, although he was apparently a successful editor (is this true? I’ve heard so many conflicting stories now it’s difficult to separate fact from fiction; don’t feel you have to answer that btw).
Here’s my disclosure for you; it isn’t antipathy, but simply perplexity, and since I think I’ve done my fair share of legal explanations as far as they go, as well as having my motives questioned (please don’t do that, I will simply refuse to respond), I wonder if you can shed any light on it for me.
What is it with gay Catholics who are somehow antigay at the same time? I’m not talking about Muehlenberg here — he isn’t gay and he’s pretty evidently a Protestant. But I must have met three or four gay Catholic men who have the most confused and confusing relationship to their sexuality that frankly, I just give up. I like to try to extend people I meet some understanding, if I’m able… but here, I’m failing badly. Pearson I’ve never met, but he seems (in print at least) to be of a similar ilk. I mean, calling Justice Kirby a ‘buggerer’ in public is pretty out there (readers, follow Marcellous’s links if you’re curious)… and the Latin rite Catholics? That’s Mel Gibson’s crowd.
Now since the planet is not exactly swarming with gays, is this as common as it appears or are the people I’ve met just statistical outliers?
marcellous@39 just for my education, did Pearson ever acknowledge the untruths directed towards Kirby in any follow up article? I haven’t read him before, but am struck by his animosity in the article you linked.
Trust a lawyer to make legal pronouncements when an advertiser exercises the right not to advertise.
Have you considered that they just got very very tired of the over the top conservative bias exhibited by your mate?
Having known Christopher P personally:
(1) He was a successful editor of the Adelaide Review (disclosure — I used to get published in it).
(2) He converted to Catholicism, largely as a result of his connection (I believe) with Rev. Chifley (Ben’s grandnephew). Yes, there is a certain tortured connection to his sexuality as a result. No, SL, I don’t really get that whole tortured gay Catholic thing either.
(3) He is someone of strong political and personal passions. I never understood the going after Kirby except as some sort of personal thing due to his intense personal connection to Bray CJ.
M@@39
Pearson was Bray’s literary executor and they had a passionate friendship when Pearson was a young man and Bray an old one. As far as I can tell, it was the great emotional connection of CP’s life. I can remember him telling me, over the phone but one could ‘hear’ his tears, of the great personal cost Bray CJ endured to not break the law.
Obviously, I disagree with CP on some fairly crucial points — e.g. St Paul’s adoption of Philo of Alexandria’s thinking, which is poisoned at its source and results in a fairly clear subversion of the Gospel message (the ‘we reject all of the Holiness Code except for that bit’ being a bit of a give-away), and the consequences of a males-only priesthood. The biggest single reason that conservative Christianity is losing a whole series of previously “settled” arguments is precisely that women have been increasingly in a position to take back rights and status the Christianisation of law took from them.
But, on the issue of advertisers not being quite so precious, he has a point. Given past history, it strikes me previously persecuted minorities have particular reason to be sensitive to the freedom to speak issue.
CG@43 ‘Over the top conservative bias’ typically just means “they publish more than a bare token of/any conservative pieces”. Online Opinion appears to be a very open venue: I realise that in itself causes offense to the more delicate and intolerant souls.
Mel – if you wrote something criticising CP which was ill-reasoned and silly, I’d simply set you straight. I’m afraid that I’ve developed a pretty thick skin about that particular issue by now, being called spazzo all through childhood will do it. If Online Opinion chose to publish you, I wouldn’t call for a boycott, I’d just write a post about how you were totally utterly wrong.
Marcellous, I had to battle against a similar instinct. I was just thinking the other day that I’ve almost never agreed with anything Pearson says! And yeah, that piece about Kirby J – ugh – really puts me off him even further. But hey, on occasion, every commentator has said something I agree with (even Andrew Bolt and Miranda Devine).
Patrickb – SL, DEM and I are all different people with quite different political beliefs. We do not all agree, and we quite frequently disagree.
I did some homework on the lawyer’s bush telegraph re Bray CJ. He was a specialist in Roman law and would have recognised much of what I’ve written in this post. He was 60 and CP was 22 at the time: a common (less common in the Roman world, although still strongly present) pattern for homosexual relationships in antiquity. He described his views as “æsthetic – traditional; social – emancipated; political – fluctuating” and his philosophies as “sceptical, some tendencies to Platonism”. He died in 1995.
He would not have had an easy life, not with those views plus that sexuality.
A word of explanation re Kirby
A judge, having sworn to uphold the law, is in a terrible situation if he repeatedly breaks it. Did I support the anti-homosexual provisions of the criminal code? No, I fought for law reform. And so, by giving us strategic legal advice, did Bray, until the law was changed, although until that time he both obeyed and upheld the law then in force. Was it a terrible price for him to pay? Yes, but he took his oath of office very seriously. Were either of us consumed with self-hatred? Of course not.
Mr Pearson, just for my layman’s understanding, would you please answer my query @42 above? In other words could you please refer me to any “reconsideration” you might have published re Kirby as a follow on from your article which was published under the header “Kirby Must Stand Down”.
Thank you.
Christopher, it’s the fundamental problem with a foolish law: when can we say that a law is so stupid that we’re not going to follow it? If a law is observed more in the breach than the observance, I tend to think it’s starting to look like a stupid law. But does that mean we can break it? For me, it really depends on the circumstances.
Realistically, though, we all bend the law sometimes. When we had water restrictions, I used to occasionally cheat and water my plants on an “odd” day if they looked like they were going to die, and then only water them a little the next day (so that the net water use was the same). Technically, I was breaking the law. Does that make me a bad person? Does it mean that I can’t be a judge? If it is different from breaking the law outlawing homosexuality, how is it different? Where do we draw the line? Actually, I don’t know the answer to these questions.
Legislating against homosexuality (or homosexual intercourse, at least) is really like trying to make water run uphill. My personal view is that laws against it are so stupid and against human nature that they shouldn’t be followed. Perhaps that was Kirby J’s view too? But I can see how people’s views could differ, and it was honourable of yourself and Bray CJ to do otherwise. In fact, the whole story makes me feel really sad. I am sorry that society and its stupid laws tied people in such knots.
I know another lawyer who doesn’t much like Kirby. It’s not the fact that Kirby’s gay, but the fact that he’s so self-righteous that gets this guy. Was that the source of your irritation, perhaps?
@35
I don’t see anything in those comments that strengthens you arguments. In fact you say:
“All jurisdictions of which I am aware permit secondary boycotts when these are undertaken by consumer”
On the facts that would appear to be the case. The activists would claim that they are the consumers and they are staging a protest. I think you’ve missed the whole point of the “trade and commerce” requirement of the Act as well. You appear reticent to set out exactly what you key arguments with regard to the statute would be or failing that the case law you’d cite. I mean thanks for the legal lesson and all but i’m more interested in exploring why you continue to pursue what was obviously an off the cuff comment (“secondary boycott”) without providing any argument.
@37,
I don’t think I mixed up anyone. The poster @29 was trying to cite the HLS convictions to support a secondary boycott argument (not necessarily a legal action). It’d be caned in a year 10 debate let alone a courtroom. I was trying to show the stupidity of the poster’s comments and I succeeded.
In reply to KVD and Leagal Eagle:
It has long been standard practice for judges accused by MPs of such behaviour to announce they’ll not to sit on related cases until cleared and doing so is widely understood as in no sense an admission of guilt. Rather it is a matter of judicial prudence to protect the standing of the office and it recognises the imperative that justice be both done and seen to be done. If you read the piece carefully, you’ll see that the headline is grossly misleading because I nowhere suggest that Kirby should “stand down”, which is a very different course of action, a distinction lost on some booby of a subeditor at the time. I never suggested that he was guilty and so had no need to “reconsider” when, shortly after, his innocence of the accusations was established. But it must be said that a more scrupulous judge would have declined to sit on such cases until the forged Comcar details were exposed.
Legal Eagle, as you know, I campaigned to change a bad law and have no regrets about the change per se. But it involved criminal sanctions of up to 10 years’ imprisonment, as I recall, and I don’t think it can usefully be compared to disregarding watering restrictions, no matter how “common-or-garden” gay sex now seems to most people. It may not be much more helpful to quote the line that”the past is another country and people did things differently there” but it’s true nonetheless. My reservations about Kirby are based on a lack of judicial scrupulosity in an era where law reform was underway ( more excusable, I suppose, in the former head of the Law Reform Commission) and the –to my mind bizarre — decision that he could simultaneously be a practising Anglican and a practising homosexual, an option even David Marr could see just wasn’t on.
Christopher Pearson@54 – so that’s a “no” then?
Not even a mild correction headed something like “Some Booby Of A Sub Editor Lost My Point” or “I May Have Based My Opinion Piece On Entirely Fabricated Evidence” was published under your byline?
I am unclear: you are referring to yourself? Or Kirby?
I prefer Solzhenitsyn’s
LE says:
“Mel – if you wrote something criticising CP which was ill-reasoned and silly, I’d simply set you straight. I’m afraid that I’ve developed a pretty thick skin about that particular issue by now, being called spazzo all through childhood will do it.”
I’m depressed to here that. I truly am. If you chose to become a militant disabled rights activist as a result I wouldn’t blame you.
According to Christopher Pearson’s reasoning any black person who broke the Jim Crow laws in the American Deep South was a “bad nigger”. I suppose the same goes for Jews who broke the Nuremberg laws in Germany.
KVD — If I could have persuaded the editor or the boobies then in charge of subbing to print a column header pointing to their error, believe you me, I would have done so. I pointed out their egregious mistake to them at the time but there was no suggestion they’d openly admit, in the Maoists’ telling phrase that ‘error has been committed’. BTW, You still don’t seem to get the idea that accusations made under parliamentary privilege are weighty enough per se to warrant a ‘what if’ ‘story and to oblige the judge to decline to sit on related cases. I didn’t actually accuse Kirby of anything and, hard as you may find it to imagine, despite our differences of opinion, bore him no ill will.
SL, LE – I apologise for distracting from this thread – the main point of which from my perspective was the loss of revenue and implications flowing therefrom for a blog which I admire and value.
I obviously have my doubts about the value of Mr Pearson’s opinions in some things, but I don’t wish to be seen as part of a “let’s pile on Pearson” push.
Just, I was disappointed (is the polite word) with one particular article pointed out earlier by Marcellous.
Well, Mr Pearson. I posted a polite “withdrawal from the field” just above. And now really really wish I hadn’t.
How do you sleep at night?
KVD — indeed you did post politely, and had I seen it rather than busily composing my own post I’d have said so. Perhaps, given the amount of piling on that’s been happening to me in the last 36 hours, you’ll make allowances. In the matter of grounds for a ‘what if’ piece, you’ll find that columnists of all political persuasions do it all the time and I doubt anyone who writes opinion loses any sleep over doing so. At any rate, none I’ve ever met.
Lorenzo, of course I knew about Pearson’s relationship with Bray, however coyly described (“passionate friendship” – meh!).
I couldn’t care less if Pearson was then or is now a self-hater, though it seems a pretty justifiable position on present evidence. But I do care when he turns hatred on others, as his invocation of buggery (that’s the old homophobic fixation on anal sex) in the Kirby piece did. Pearson was wrong also to call for Kirby to recuse himself from appeals concerning under age sex convictions (judges have to be tougher than that and of course it remained open for any appellant or respondent to make an application if they chose), and his comments in this thread have revealed the semblance of solicitude and respect for Kirby in that piece as the saccharine lacing it was.
I probably don’t even care beyond a matter of ancient gossip whether Bray and Pearson consummated their love, how they did it if so (intercrural? buggery? something else?), and whether and if so how Pearson waited out any “cruel dilemma” on the “cusp of law reform” in SA (I assume from 1972 to 1975), though since Pearson has raised these matters in relation to Kirby I don’t see why he should hold back on the details.
In the meantime, the claim of a breach of s 45D has yet to be made good at even a general level, as Patrickb has rightly reminded us, and the advertisers for gay dating sites whose ads pop up on my version of Muehlenberg’s piece are probably wasting their money too.
“Piling on” does tend to make one upset. It also tends to make one even more suspicious of the activists who are piling on you (SL’s green crayon brigade). I think all of us on the blog have experienced it, and it’s really not pleasant
Look, my own opinions differ from yours in many things, I suspect, and I don’t much like that Kirby article, but I’m definitely prepared to give credit where I think you’ve got it bang on (as in the piece you wrote for The Australian the other day). And difference of opinion doesn’t bother me so much. How boring it would be if we all agreed! SL and I disagree on many things, and it’s what keeps me blogging.
If I were a religious gay person, I’d purge the Bible of all the homophobic bits and set up my own church of the Latter Gay Saints (seriously, I’m not joking). It’s not as if the Bible hasn’t been purged plenty of times (witness all those apocrypha, and all those fights about what is and isn’t the true doctrine). But then I’m with Lorenzo: I’ve never liked St Paul’s Gospels much. SL made me feel a lot more sympathetic to him when she showed me Shelby Spong’s theory that St Paul was a conflicted homosexual himself – that “rang true” to me, although who can tell?
Luckily for me, perhaps, I’m neither Christian nor a homosexual man, so it’s not something I have to wrestle with personally. I have seen gay and lesbian friends who are totally tied in knots by religion (one friend was convinced he was going to Hell in a handcart for having homosexual feelings, for goodness sakes).
Mel @ 56:
Personally, I think success is the best revenge. And these days, when people say thoughtless or inappropriate things, I am able to put them in their place. One idiot at a former workplace said something about the odd way I walk when I’m tired, and I made him so uncomfortable about what he said that he used to blush to look at me thereafter. That’s just my personal way of dealing with things. As I said above, I’m not an activist type. I don’t go in for grand gestures or things like that. I prefer reasoned argument.
Ah, the joys of different time zones, and what one therefore awakes to find of an early Sunday morning.
This thread has, um, degenerated somewhat, and has got to the stage where it is probably best left alone. I am reluctant to close threads, but I suspect this may be the best thing in all the circumstances here. We are now getting into complicated personal accounts involving prominent living persons and what are very likely irreconcilable differences, not only in matters of politics, but also religion and sexual history. In my experience, these are not things easy to resolve. Sometimes they can’t ever be resolved, and maybe that’s something I just have to accept. I am going to steal LE’s line about making water run uphill and apply it to resolving differences of this type, because I suspect that the latter may actually be harder than the former.
I have ‘real’ work to do today (as in, work I am paid to do by the Scottish taxpayer), and neither the time nor the inclination to police this thread and interpose comments. This does not mean I dislike you, or that you won’t be welcome to comment on other threads in the future. It just means I don’t like where this one is going.
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