There’s nothing quite like getting up first thing in the morning to discover service documents sitting in your hallway (or, if you’re in Australia or the US, poking out of your mailbox). This is what has happened to Australian political and skeptical blogger Jennifer Wilson (her blog is ‘No Place for Sheep’) yesterday. I have had a couple of these in my time, although interestingly, none since becoming a lawyer. This is presumably on the basis that lawyers know their own kind, and know what they can get away with.
Anti-porn campaigner and self-described ‘pro-life feminist’ Melinda Tankard Reist is behind the claim, and although the basis of the suit has not been revealed, Russell Blackford suspects defamation. I agree with him, although invasion of privacy may be an outside possibility. I say ‘an outside possibility’, for the simple reason that Australia has no tort of invasion of privacy, and for obvious reasons is not a signatory to the European Convention on Human Rights [ECHR], where Article 8 provides a qualified protection for privacy and family life. Russell comments:
The Christian anti-porn campaigner Melinda Tankard Reist has apparently threatened a defamation action or something of the kind against the blog No Place for Sheep (NPS).
NPS is the blog of Jennifer Wilson, an Australian academic, psychotherapist, and writer. It suggests that Ms Tankard Reist’s threat relates to true claims that she is a Baptist who attends the church in Belconnen – what this really amounts to, I think, is that the blog suggests she is motivated in her anti-porn campaign by her adherence to a conservative Christian belief system.
There may be more to it than that. I don’t claim to have researched all the claims made by the blog about Ms Tankard Reist. Perhaps some genuinely defamatory imputation can be found there somewhere … or not.
In any event, she is a public figure and a forthright campaigner for her cause, one who makes plenty of robust statements of her own (I’m wording this carefully, as I’m not especially interested in being slapped with a letter of demand or a defamation suit myself).
Once more from the top, people
Legal Eagle and I wrote a guide to Australian defamation law (available here) in April, 2009. The law has not changed since then. However, it is important to remember that Australia has enacted Uniform Defamation Laws (for example, the Defamation Act 2005 (Vic) in LE’s home State of Victoria), so what is true of one state or territory will be true of all the others. The salient points to remember in this instance are as follows:
A publication will be defamatory if it tends to injure reputation by:
- disparaging a person;
- causing others to shun or avoid a person; or
- subjecting a person to hatred, ridicule and contempt.
If an individual is defamed, then he or she has a right to damages for the injury to reputation, as the purpose of the tort is to vindicate and protect reputation. Courts do not only look at the literal meaning of a defamatory publication, but also consider what the ordinary reader or viewer could have understood the publication to mean. This may be different from what was intended by the plaintiff or what was understood by the defendant.
The three main defences are:
- fair comment
- qualified privilege
‘Fair comment’ is available when the publication is a comment (rather than a statement of fact). The comment must be:
- based on facts (which must be stated or sufficiently identified);
- relate to a matter of public interest; and
- an honest expression of the commentator’s view.
This is backed up by the statutory defence of ‘honest opinion’ (see eg, s 31, Defamation Act 2005 (Vic)), which is in similar terms.
In Australia, there is also a defence of ‘justification’, which applies if the defendant can prove the allegations are ‘substantially true’ (see eg, s 20 of the Defamation Act 2005 (Vic)). This can be compared to UK defamation law, where the defamatory statement is presumed to be false, unless the defendant can prove its truth. ‘Qualified privilege’ applies when there is a legal, social or moral interest or a duty to communicate something to a person and that person has a corresponding interest or duty to receive the information. This is what protects job referees, for example.
2. Right to privacy/invasion of privacy
As Australia has no tort of invasion of privacy, all I can do is point to a piece of mine on English and European law on breach of the Article 8 ECHR right to privacy. The salient thing to remember when it comes to the European law is that we are dealing with breach of a human right, not a tort, so tortious reasoning is not very helpful. Instead, the two contending ECHR rights (typically Article 8 and Article 10, the right to freedom of expression) are balanced against each other. This means that no distinction is drawn between public figures and private individuals (a contrast with the US position). Instead, a distinction is drawn between different types of expression, with political speech protected more powerfully under Article 10 than, say, celebrity gossip. We do seem to be following the French in seeing sexual behaviour as ‘inherently private’.
The European law of privacy is thought-provoking (my piece summarizes not only the relevant law but also its historical origins) — in part because it is so foreign to people coming out of an Anglophone legal tradition. However, as it is not a part of Australian law, and if Australian law were to change it would most likely be in the form of a new tort, the High Court’s discussion of the issues in Lenah Game Meats v ABC  HCA 63 is of greater moment.
The important thing to remember about Lenah Game Meats is that the Australian High Court is open to the development of a tort of invasion of privacy in circumstances where a person intrudes upon the personal affairs of another, where the matter made public is highly offensive to a reasonable person and there is insufficient public interest in having the information disclosed. This bears considerable similarity to the US law on point, and is distinguishable from the European law discussed earlier. As should be reasonably obvious, Australian law is still waiting for a suitable test case.
A little legal speculation or, why would someone prefer not to reveal their religious affiliation in debates about porn and abortion?
1. Melinda Tankard Reist – some background
According to her publisher, respected feminist imprint Spinifex Press, Melinda Tankard Reist is:
[A] Canberra author, speaker, commentator, blogger and advocate for women and girls. Melinda’s books include Giving Sorrow Words: Women’s Stories of Grief after Abortion (Duffy & Snellgrove, 2000), Defiant Birth: Women Who Resist Medical Eugenics (2006) and Getting Real: Challenging the Sexualisation of Girls (2009). Getting Real is already in its fourth printing. She has been a contributor to China for Women: Travel and Culture, Cat Tales, A Girl’s Best Friend, and HorseDreams.
Melinda has just initiated a new grassroots campaigning movement called Collective Shout. It aims to expose corporations, advertisers and marketers who objectify women and sexualise girls to sell products and services. In demand as a speaker, Melinda is named in Who’s Who of Australian Women and the World Who’s Who of Women.
She is regularly attacked and slandered but loves the women in the ‘To’ address bar in emails who have helped keep her sane in difficult times.
Her personal website provides a little more detail:
Melinda’s commentary has been published and broadcast in Australia and overseas. She has been a panellist on ABC’s Q&A, and is a regular on Channel 7?s Morning Show, along with frequent appearances on a range of television and radio programs. Melinda contributes regularly to online opinion sites including ABC The Drum Unleashed. She’s also editor of Faking It: The Female Image in Young Women’s Magazines (WFA 2007).
Further detail again is available on well-known Australian humanist Leslie Cannold’s site. Cannold’s information is taken from material Reist wrote for her publisher, in various collections of essays and stories. The most salient:
By 1994 she was describing herself as ‘a freelance writer with a special interest in women’s health issues, bioethics and population programs’ (‘Contributors’, Michael Cook [ed.]  The New Imperialism: World Population and the Cairo Conference [Little Hills Press], p.8). She was also presenting radio broadcasts for the Australian Broadcasting Corporation e.g. ‘Bullets or Babies’ (China for Women op. cit., p.350).
At about this time, Tankard Reist made three important moves as far as her future career was concerned. Reference has already been made to Spinifex Press which published China for Women and which later issued one of Tankard Reist’s own books, Defiant Birth: Women Who Resist Medical Eugenics (2006). Spinifex Books is run by Susan Hawthorne and Renate Klein, the latter being one of the best-known and longest-established ‘pro-life feminists’ in Australia.
Senator Brian Harradine, an ultra-conservative Tasmanian senator, hired Tankard Reist as his bioethics adviser in about 1993-94. Harradine retired in 2005 at which time Tankard Reist had been in his employ for 12 years. She may well have directly influenced a number of Harradine’s more important political deals, including the imposition of a longstanding ban on importation of the RU 486 ‘abortion pill’.
Also around 1994, Tankard Reist became involved with the Southern Cross Bioethics Institute (SCBI), a Catholic-dominated organisation that produces a range of statistics and research papers, virtually all of them favourable to official Catholic positions. One of these is Tankard Reist’s own ‘RU 486 Trials – Controversy in Australia’ (September 1994) which quotes Senator Harradine, Renate Klein and the Australian Catholic Bishops Conference as authorities in this area. Selena Ewing, one of Tankard Reist’s co-directors at Women’s Forum Australia, is a Research Officer at SCBI.
In a careful (and recent) profile, writer Rachel Hills left out Reist’s religious affiliations, but did make some other telling observations (the whole piece is worth a read):
Tankard Reist links media reports of increased child-on-child sexual assault to “children acting out what they’re learning from pornography”, but the 2010 Australian Crime Commission study the stories were based on stresses that “sexualised behaviour in children is only rarely a result” of sexualised media. The American Psychological Association’s 2007 investigation into the sexualisation of girls is more concerned with narrow beauty standards than it is with sexual media content.
“There is often a suggestion in the anti-porn movement that men’s attitudes towards women’s sexuality were better in the ‘good old days’,” argues Alan McKee, a professor in film and television at QUT and co-author of The Porn Report. “But we know statistically that young men today have far better attitudes towards women than their fathers or their grandfathers did.”
Hills’ failure to draw attention to Reist’s religious affiliations drew criticism from Jennifer Wilson (she who has been sued), who observed:
I’m surprised that you didn’t mention Tankard Reist’s religious affiliations. She’s a fundamentalist Christian. As feminists we learn to always ask anyone who is publicly morally prescriptive where they are coming from. Yet you don’t ask that question.
Tankard Reist’s critique of sexuality is based on the moral values of fundamentalist Christianity. She is of the religious right and a member of a church that preaches the second coming of Christ, the end time, and evangelism.
If we can tell Tony Abbott to get his rosaries off our ovaries because of his Catholic beliefs, why aren’t we telling Tankard Reist the same thing? And why are journalists such as yourself concealing her religious affiliations?
Hills’ response was that she thought the religious origin of Reist’s views was obvious:
You’re right, I didn’t ask MTR about her religious beliefs, and perhaps that was misplaced of me. I suppose the reason I didn’t was because it seemed so obvious to me that it wasn’t worth asking – have you ever met anyone who identified as pro-life who wasn’t religiously motivated? But fair point: it was an omission, and I should have mentioned it at least in passing.
For the record, I did ask Melinda what she thought healthy female sexuality looked like, if she thought women had a role to play in regulating men’s sexuality, and to articulate how she defined “sexualisation” and why it was of concern to her. Some of those answers didn’t make the final story (I wrote it from 45-pages of transcripts and background material – there was a lot of info that didn’t make the cut), but I don’t think you could say that the story repeated her POV uncritically.
2. So why the coyness about religious affiliation? And is privacy an issue?
People — including, believe it or not, public figures — do not like to have ‘where they hang out’ made available for public consumption. If this is the basis of Reist’s claim, then I have some sympathy — having had something similar done to me — even though it will not sound in Australian law. Once media people know where you shop, or exercise, or whatever, then they are in a position to make your life pretty bloody miserable. In the process, they can also make other people’s lives pretty bloody miserable if the place in question is quasi-public (a gym or a church, say). Ever seen footage of someone trying to bolt while being pursued by a bunch of people with cameras? Ever noticed that sometimes they chase the wrong person, or any person? This is likely what Reist is trying to avoid, and has some salience in English law, for example, in Campbell v MGN Ltd  UKHL 22. In that case, the House of Lords held that the press couldn’t, without more, reveal that model Naomi Campbell was attending Narcotics Anonymous (the story included, among other things, paparazzi pictures of her taken outside the clinic).
However, I do think it is important that Reist’s religious affiliations are noted (even if the exact location of the church she attends is not revealed). This is because, I submit, her religious coyness is borne of the weakness of religious arguments against both pornography and abortion. This part of my argument is largely for people like Rachel Hills, who naively revealed in her comment on Jennifer Wilson’s site that she’d never ‘met anyone who identified as pro-life who wasn’t religiously motivated’. It would appear that Hills has never heard of Christopher Hitchens, at least in some of his moods.
3. Why are religious arguments against porn and abortion so bad?
You’ve all heard them, admit it. Chastity and morally upright behaviour will make us all better people; we can do without sex; celibacy is a gift from God; true love is love of God, sexual attraction is a diversion. Then there are the arguments against abortion, which are even worse: abortion creates a ‘culture of death’; raise every child regardless of whether you can afford it or not, weigh an infant’s life equally with that of the mother, worry about the unborn but do nothing (or very little) to assist those children (and their mothers) when they are born, or, in the alternative, do worry about this and find oneself subsidizing an utterly unworkable welfare state that routinely produces disasters like this.
It’s important to understand that this lack of quality is not because Christians and Muslims are stupid. They made (and make) interesting and sophisticated arguments in other areas. But they don’t ‘get’ sex at all (a point detailed with great knowledge and wit by University of Virginia professor of psychology, Jonathan Haidt). Haidt comments:
I think, however, that at least two less benevolent motivations [for religious hostility to human sexuality] are at work. First, there may be a kind of hypocritical self-interest in which the older generation says, “Do as we say, not as we did.” Buddha and St. Augustine, for example, drank their fill of passionate love as young men and came out only much later as opponents of sexual attachments. Moral codes are designed to keep order within society; they urge us to rein in our desires and play our assigned roles. Romantic love is notorious for making young people give less than a damn about the rules and conventions of their society, about caste lines, or about feuds between Capulets and Montagues. So the sages’ constant attempts to redefine love as something spiritual and prosocial sound to me like the moralism of parents who, having enjoyed a variety of love affairs when they were young, now try to explain to their daughter why she should save herself for marriage.
There are a number of reasons for these very bad arguments, but I will outline the most obvious:
- The anti-sex/sexual expression arguments outlined by early Christian theologians like St Augustine have been disproven by scientific evidence (see Haidt, above, for exhaustive detail).
- The most able Christian theologian, St Thomas Aquinas, followed pagan thinking (particularly Aristotle) on abortion, not disapproving of it until ‘quickening’. If any Christian was going to come up with a decent anti-abortion argument, it would have been Aquinas, but he didn’t bother. He was a bit busy trying to convince his fellow Christians that the universe obeyed rational scientific laws.
- Protestantism is theologically very weak, having largely shorn itself of Catholic excellence in this area (Aquinas, Augustine, Finnis, Feser, etc), forcing it to rely on the Bible, which is, shall we say, not a morally sophisticated document. The best argument against sola scriptura is the fact that large chunks of that scriptura are just, well, awful. Steven Pinker points out that you’d get a more sophisticated moral code from reading Homer… but that’s not saying much.
- Arguments for moral laws are often extrapolated from facts in the natural world, but just because something is a certain way doesn’t mean we ought to do a particular thing, do anything or do nothing as a consequence. This is known as the ‘is-ought’ problem in philosophy.
- (Attempted) chastity and (attempted) morally upright behaviour across large regions does not make for better people, or contribute to moral improvement. In fact, the opposite occurs.
- As part of (1) above, women are expected to greater or lesser degrees to police male sexuality and, by analogy, many other male habits. There are many interesting roles to fulfill in the world; ‘God’s Police’ is not one of them.
When your arguments are bad, but you still endorse the position those bad arguments buttress, you have to look elsewhere for good arguments. Religious anti-abortionists have come increasingly to rely on scientific arguments (a point Hitchens makes with some skill in his piece above) and on the non-aggression principle, which is borrowed from libertarian philosophy. Both are intelligent propositions, and ought to be taken seriously. They do not have a religious origin at all, although religious people now use them.
When it comes to pornography, religious anti-porn campaigners have turned to feminism and its various offshoots in the social sciences to make their case, once again because of the weakness of (1) above. It is important to note that not all feminists are anti-porn, only a sub-group are. Relevantly, however, those anti-porn feminists have produced considerable research and argument on the issue, and have shown themselves able to influence public policy in various countries. Their arguments, like Hitchens’ argument from science and the non-aggression case against abortion may be wrong, but are worthy of respect. It is important to bear this in mind.
Of course, the available research on porn, the status of women and sexualisation points in fifty different directions, which pleases no-one. There is evidence that freely available pornography reduces rates of violent sexual assault, for instance, along with evidence that teenagers are watching porn and getting what my mother used to call ‘ideahs’. Reist is particularly hot (along with Clive Hamilton) on ‘corporate paedophilia’, attacking the sexualisation of children in advertising, an attitude often coupled with a more general hostility to commerce. There is a kinship between her ‘Collective Shout’ and the feminist inspired ‘Pink Stinks!‘ campaign over here, for example. The difference, of course, is that the latter is a consumer pressure group only; Collective Shout actively seeks (and sometimes obtains) complete bans.
I have no wish to advise feminists (or others) on whom they choose as allies, but I will make a few observations. First, I think it is very dangerous for any school of feminism to find itself siding with women who do want to be ‘God’s Police’. Feminism went down that road once before; it was called ‘Prohibition’. It didn’t end well. Second, I am very wary when the available scientific research is so equivocal; we may well be confusing the noise for the signal. Third, there is something to be said for ‘the merit of candour’ in debate. Admitting that one’s arguments are ordinary and that one is actively looking for better arguments is no bad thing. Doctors no longer accept the doctrine of the Four Humours, the civil law no longer endorses obtaining a confession via judicial torture — this despite the fact that the most able minds of the past thought both were legitimate examples of ‘best practice’. People just found better arguments.
Accepting that one has a religious affiliation and that it motivates one’s beliefs (even though it does not provide substantive arguments to buttress those beliefs) is surely better than commencing litigation against someone who has merely pointed out the awkward association.