Disapproving of what someone says but defending their right to say it is sometimes very hard. It sounds fine in principle…until you see something that is really challenging to your ideas of what is acceptable.

The Sydney Morning Herald reports today:

The Australian Human Rights Commission has threatened legal action against a widely read but controversial US-based website over an article that encourages racial hatred against Aborigines.

But online users’ lobby group Electronic Frontiers Australia said that trying to stamp out the deplorable content would only create the “Streisand” effect, whereby an attempt to censor online content only brings more attention to it.

In a letter to Joseph Evers, the owner of Encyclopedia Dramatica (ED) – a more shocking version of Wikipedia that contains racist and other offensive articles dubbed as “satire” – the commission said it had received 20 complaints from Aborigines over the “Aboriginal” page on the site.

(AHRC’s letter to Evers is reproduced here)

Evers’ site is an American site published on an American server, and thus he alleged that Australian law could not affect his publication. In response, AHRC cites the Gutnick case, in which Joe Gutnick was allowed to sue for defamation in Victoria although the defamatory material in question was published on a server in the US by a US company, because the damage to Gutnick’s reputation occurred in Victoria. I do wonder how applicable the principle in the Gutnick case is to something like internet hate speech.

The Encyclopaedia Dramatica article on Aborigines has been the subject of legal action before. In January this year, in response to a complaint by an indigenous man, Steve Hodder-Watt,  Google removed the link to the site in google.com.au in respect of results for a search with the words “Aboriginal and Encyclopedia”. However, as The Inquisitur notes, the site still comes up with different search combinations, and it still comes up in google.com. Apparently the site also had the distinction of being on the Federal Government’s Internet censorship list.

So I went and looked at ED. Naturally enough, I didn’t much like what I saw. Apparently it is intended to produce “lulz” via trolling. Lulz is often used to denote laughter at someone who is the victim of a prank or to show joy at disrupting another’s emotional equilibrium. I’ve never been much of a fan of that kind of “humour” anyway (too cruel). I found the few pages of ED at which I looked offensive and very unpleasant. It was not in the least funny, to me at least. I’m not going to link to it here because I don’t want to give it publicity. The post on Aborigines claims:

This article was written entirely by Australian aborigines who are satirizing racists in Australia in the same way that Sacha Baron Cohen, a jew, uses the character Borat to satirize anti-semitism. So this article is completely 100% not racist at all.

Evers has written a blog post commenting on the AHRC’s claim:

So here’s the deal. This is an initial investigation into charging me, personally, with the violation of Australia’s Racial Discrimination Act. While I act in complete compliance with both the civil and criminal codes of the United States of America, and am assured the right of free speech according to our Constitution (which, if not the greatest political document in the entire history of law, is certainly on the top five) I can personally be jailed and fined for the violation of this law. Check out the court precedent they cite, Dow Jones & Co Inc v Gutnick, where a United States paper had to pay 580k for publishing an article about a globalized company headquartered in Australia and its CEO whilst completely in compliance with United States civil precedence. This isn’t a far-fetched legal theory, they have used it before. Welcome to the one world government, folks. Is this what you wanted? Is this what you had in mind? Cause this is what you’re gettin’.

Encyclopedia Dramatica will never be censored in any way. We will keep publishing this content and our Australian users will be able to view it up until the point that your God-forsaken government blocks it with their soon-to-be-implemented secret list of banned material. ACMA’s child pornography blacklist is only one half child pornography. The rest is religious and political speech. You really want Soviet-style communism as your future? I know some people that had to escape from the GDR. Many of your children will be in that position. The house of cards is about to come down, and they’re making sure your mouths are taped shut first. Don’t say I didn’t warn you.

My counsel has advised me that I can never under any circumstances visit my family in Sydney again, nor otherwise make any appearances on Australian soil. Here’s to the hidden cost of freedom.

There is also an interview with a moderator from ED here.

I very much doubt that the AHRC’s claim could be enforced in the US. In 2001, a French court order sought to ban sales of Nazi-related material on Yahoo’s US-based auction site. The court ordered Yahoo to block French citizens from accessing auction listings or Web pages on its site that contained anti-Semitic or Nazi-related material. The US Federal Court said:

Although France has the sovereign right to regulate what speech is permissible in France, this court may not enforce a foreign order that violates the protections of the United States Constitution by chilling protected speech that occurs simultaneously within our borders.

Colin Jacobs, spokesman for Electronic Frontiers Australia, said the article was “indefensible” but continued:

“EFA doesn’t believe that because something is on the internet it should be immune from critical examination or legal redress. Defamation and anti-hate-speech laws have a place even when applied to online content.” …

“[But] a costly and lengthy legal battle would only give these guys more publicity, and the day the case was won, the page would pop up on a web host in another country. Trying to stamp out this fire will just cause it to spread.”

This reminds me of both the recent defamation case filed by Lindsay Lohan against E*Trade for US$100M (after an E*Trade commercial featured a “milkaholic” baby named Lindsay) or the Liskula Cohen “Skank NYC” case (post here). In the end, I doubt I would have known about either piece of defamation if Lohan or Cohen had not sued for defamation.

Similarly, by bringing the action here, the AHRC may have actually given this site a massive burst of publicity it would not have otherwise had. It’s highly unlikely that I would have ever come across ED or any of its articles without the publicity garnered by this claim, and even more unlikely that I would have lingered for more than 5 milliseconds once I realised what the site was like.

As I learned today via the SMH article, there’s a name for this phenomenon which is primarily seen in online media: the “Streisand effect“.The term was coined after Barbra Streisand unsuccessfully attempted to sue photographers for US$50M in an attempt to have an aerial photograph of her mansion removed from the publicly available collection of 12,000 California coastline photographs, citing privacy concerns. As a result of the case, public knowledge of the picture increased substantially and it became popular on the Internet, with more than 420,000 people visiting the site over the next month.

It’s already happened with Hodder-Watt’s claim – when I plug in “Aboriginal and Encyclopedia” into Google, many of the sites which come up now reference ED and Hodder-Watt’s legal action against it.

So ultimately, although ED is very distasteful and offensive, I wonder if it would have been better to leave it alone rather than give it airtime by bringing legal action.

(Hat-tip: Heath Gibson who has a new blog, Minimal State)

Ayn Rand remains a best-selling author. Nearly thirty years after her death, and over fifty years since publication, her books remain as popular as ever. Just last year The Economist proposed an Atlas Shrugged Index; the sales of her magnum opus tracking events that herald big government. To be sure her two best known books The Fountainhead and Atlas Shrugged are eerily prescient; her villains especially describe the threats to our freedoms. Her descriptions of second-handers, moochers and looters relate to people and institutions that are readily recognisable.

It is surprising that her books remain so popular in an era of instant gratification. They are long-winded, torturous reads punctuated by gems; her books need a good editing and perhaps shortening. Nonetheless thousands of people each year discover her writing for the first time, and if a long-promised Atlas Shrugged movie comes to the big screen many more millions will discover her work.

While there is steady demand for her books, it seems in recent time that there has been an increase in interest in Rand herself. The classic It usually begins with Ayn Rand by Jerome Tuccille is back in print, while Goddess of the market: Ayn Rand and the American right – a new biography – is selling well. Then there are beginners guides to Rand and many more books to choose from. Yet, for all this attention, it isn’t clear that we should learn anything positive from Rand’s life itself, as opposed to reading and enjoying her books.

That we shouldn’t (or can’t) learn anything from her life is unsurprising. Philosophers and littérateurs are often not very nice people, and (this also has to be said) we often let them get away with not being very nice (in part because they are such statistical outliers). This not-niceness manifests itself in various ways. In philosophers, it’s often a spectacular failure to live up to one’s professed ideals. Jefferson is the classic case study in this, at least in the liberal tradition: he tried to abolish slavery and wrote its abolition into his draft of the US Constitution Declaration of Independence but nonetheless kept a slave concubine and had several children by her. In the end, she and her children were the only slaves he ever manumitted. The rest of the slaves at Monticello stayed enslaved. 

Philosophical traditions (like Stoicism) that require their practitioners to live up to their ideals as a core ethical component can have a higher ‘niceness’ hit rate. It’s clear from the sources that Epictetus, Zeno and Musonius Rufus were all decent people who lived up to all or most of their ideals with honour and integrity. Seneca, however, struggled with the gap between his own life and his professed Stoicism, so even Stoics aren’t immune.

That you should be able to do what you purport to advise on is an important part of virtue ethics, which borrows from Stoicism and Aristotle and blends in bits from the non-consequentialist elements of the liberal tradition. It’s interesting but a bit suspect in my view, for the simple reason (as the article I’ve linked indicates) its practitioners finish up getting into immense arguments about what constitutes virtue, and we soon find ourselves back at square one and having to live by a version of Mill’s harm principle. In large, complex, cosmopolitan societies, the tricky thing is living with people who are very different from us without cutting each other’s throats. This may not seem terribly inspiring, but looked at across the broad sweep of human history, it’s devilishly difficult to do.

Leaving all that to one side, there is still the conundrum of Rand’s enormous popularity. Clearly her ideas speak to a great many people. I learnt at the recent conference I attended in the US that her books are immensely popular among women in India, for example, in large part (if the buyers are to be believed) because she gives Indian women good reasons to reject notions of duty (familial and otherwise) that pervade Indian society. Sometimes people want to be selfish, to care for themselves before others, to put themselves first. Women have traditionally been punished for this in many societies, so it’s clear that — at least for Indians — Rand provides ethical options, and for this reason she’s very popular.

Over at Catallaxy, I made the following comment on Sinclair’s excellent post:

The Fountainhead is a better book as novels go; Rand had to restrain her impulse to splurge on the word count and write a novel people would read. Atlas Shrugged, published after the first one had become a major bestseller, meant that she could get away without being edited. The book is badly written as a result, but more revealing.

Working out why hundreds of thousands or millions of people love a given book is very difficult, especially when that book is full of complex ideas. We’re not supposed to like novels about ideas, and — to be fair — this is often a good intuition. They don’t sell. But when they do (and Rand is not alone in this; there are other novels stuffed with challenging stuff that have been very popular), working out why is akin to playing the shell game at a country fair: the marble isn’t under any of the cups.

Since making that comment, I’ve been thinking about it and wondering if I’m right. I now think I was wrong to be so broad-brush, to pretend that literary popularity is some sort of impenetrable black box. I’ve written a popular novel that was also complex and difficult. I should know better. That said, if I’m wrong, I think I’m wrong in all sorts of interesting ways.

Discuss.

UPDATE: Sinclair has written a cracking follow-up post to his earlier effort over at Catallaxy. Well worth a read.

A report into the collapse of Lehman Brothers criticises senior executives and auditor Ernst & Young for serious lapses that led to the firm’s collapse. The report says Lehman was insolvent for weeks before it went bankrupt, sparking a global financial meltdown.

It accuses management of “actionable balance sheet manipulation” and using accounting tricks to hide debts. Ernst & Young said that its last audit of Lehman was “fairly presented” according to accounting rules.

The collapse of the 158-year-old investment bank in September 2008 was the world’s largest bankruptcy. Wall Street, the City of London, and the US and UK governments tried to organise a rescue, fearing – rightly – that Lehman’s failure would set off a chain reaction around the globe…

Much of the report, which took evidence from all the major parties involved in Lehman’s collapse and attempts to rescue the firm, contains allegations about an accounting “gimmick” known as “Repo 105″. This is a legal accounting device that involves shifting around assets to reduce the size of a company’s balance sheet, and effectively give the appearance that debts have been cut…

London appears to have played a key role in approving Lehman’s use of Repo 105. The report says Lehman at first tried to find a US law firm that would approve its shifting around of assets.

Unable to get US clearance, Lehman turned to London law firm Linklaters, which advised that the practice was allowed under UK law. So, assets Lehman wanted to “hide” were transferred to the London operation, which would “conduct the [Repo] transaction on their behalf,” the report said.

- BBC News

The BBC’s Business Editor, Robert Peston, explains Repo 105 in more detail here

The twist in the tale is that s 344 of the Children, Youth and Families Act 2005 (Vic) provides that ‘[i]t is conclusively presumed that a child under the age of 10 years cannot commit an offence.’ Under the common law, the principle of doli incapax requires that it must be proven beyond reasonable doubt that criminal conduct by a child under the age of 14 years is known to be wrongful by the child, and the starting point for the evidence is a rebuttable presumption in favour of the child.

Section 8(1) of the VCAA provides that financial assistance may be awarded to a “primary victim”. “Primary victim” is defined as “a person who is injured or dies as a direct result of an act of violence committed against him or her” (Section 7(1) of the VCAA).

s 3(1) of the VCAA, an “act of violence” means “a criminal act or a series of related criminal acts”; and a “criminal act” is defined to mean:

An act or omission constituting a relevant offence or that would constitute a relevant offence if the person had not been incapable of being criminally responsible for it on account of –

(a) age, mental impairment or other legal incapacity preventing him or her from having a required fault element; or

(b) the existence of any other lawful defence; … .

The VCAT Member found that ‘having regard to the tender age of the perpetrators, I cannot be satisfied on the balance of probabilities, that they amounted to criminal acts rather than bullying. I think it unlikely that they were motivated by criminal intent.’

Cavanough J overturned the findings of VOCAT and VCAT. His Honour said at [34] – [35]:

However, although the Tribunal did not say so, I think it probably was in fact satisfied about basic intent. If not, it plainly should have been. The allegations by BVB [the victim] against K [the principal bully], S and J [the other bullies] were allegations of crimes the commission of which do not necessitate sophisticated thinking. Mainly they were allegations of assaults (including batteries) and threats to kill. There was no suggestion that any of the incidents occurred accidentally. The evidence clearly showed hostility towards BVB on the part of K, S and J at the relevant times. With respect, it is not to the point to say, as the Tribunal did, that a threat to kill by a 10 year old child is more likely to be hollow than to be made with actual criminal intent. It did not matter whether K had the means or the intention of actually carrying out her threats, unless her lack of means and intention were apparent to BVB, and there is no suggestion of that. Indeed, the evidence showed that K fully intended by her threats to put BVB in fear of her life (and she did so). Similarly, according to the uncontradicted and accepted evidence, on each occasion when K, J or S physically hurt BVB by punching, kicking, pinching, pushing or scratching her, they obviously intended to do what they did and they obviously intended to hurt BVB.

It is true that the law conclusively presumes that a child under the age of 10 years cannot commit an offence. And it is also true that the common law includes the principle of doli incapax, whereby knowledge of wrongfulness by a child under the age of 14 years is required to be proven beyond a reasonable doubt; and that that principle is supported by a rebuttable evidentiary presumption in favour of the child. However, at least insofar as it relates to age, the very point of that part of the definition of “criminal act” in s 3 of the VCAA that is expressed in hypothetical terms is to require the court or tribunal to disregard any legal principles or protections specially appurtenant to age that would or might apply outside the confines of the VCAA. This the Tribunal failed to do.

Hopefully at least the money which the victim’s family received helped them to cover the expense of sending their daughter to a new school.

A British soldier has described how he picked up a Taliban hand grenade which landed at his feet and threw it back towards the enemy.

Rifleman James McKie was on a tiny rooftop in Sangin. He and two of his platoon could hear the bullets fired by the Taliban below bouncing off the roof.

The 29-year-old soldier had just finished firing back when the grenade thrown by the insurgents bounced off his platoon commander and landed just a foot away from him.

He heard a small pop, “like a fire-cracker,” before he saw the grenade land.

The young soldier, originally from New Zealand, made a split-second decision that was to save his life and those of his two comrades on that roof. He picked up the grenade, and threw it back.

“I saw the grenade, and my first thought was that I knew I had to get it away from us. And my second was ‘I hope this doesn’t hurt too much’,” he says, with a wry smile.

Obviously well-schooled in forming ‘the long barrier’, Rifleman McKie (who is Kiwi originally) ‘got behind it’, fielded it and threw it back. Who knew that cricketing skills had such a direct military application:

Approach the ball at speed and as you get into line with the ball, twist your upper body, leading with the shoulder furthest from the ball.

Bend both knees, so that the knee of the leg nearest to the ball touches the ground, but it is also next to the back of the heel of the other leg.

With fingers down and head forward, pick up the ball and then stand back up ready to deliver an overarm throw.

Don’t, however, try this at home. Except with a cricket ball, of course; that’s all right.

[The mother] said encouraging the term of endearment was ”an incendiary action” by her former partner and his new partner, even though it was followed by the initial of the stepmother’s first name and they had agreed not to encourage the simple use of ”mum” or ”mummy”.

But Justice Christine Dawe refused to grant the order, saying it was impractical to require the father to stop encouraging the stepmother and the child to use the term ”Mummy D”, and could have led to further litigation.

”Weighing all of the factors up, and particularly that the child has in the past used the expression ‘Mummy [D]‘, and on the basis that I am not satisfied from any of the material before the court that the use of the expression ‘Mummy [D]‘ by the stepmother would undermine the mother’s relationship with the child, I am not satisfied that it is in the best interests of the child [to grant the order],” the judge said.

”I also accept that, at her age, she will develop and in future will be likely to, or may well possibly, adapt to calling each of her step-parents by their first names rather than using expressions of either ‘Mummy’ or ‘Daddy’.”

Patrick Parkinson, a family law professor from the University of Sydney made the following comment about the decision:

”There are limits to what any court can do. You can’t regulate every aspect of family life through court orders,” he said. ”We’ve got to grow up and stop thinking every breakdown can be resolved by the court.”

The case had probably cost the parties a lot of money, time and anxiety, but there was not much that could be done to stop such changes occurring after divorce except to respect the other people involved and recognise their role in a child’s life, he said.

Parkinson is right on the money – there are limits to what the law can achieve. I wish people thought about that more often. I mean, how could such an order be practically enforced? What happens if the child calls her stepmother ‘Mummy D’ of her own volition, despite the court order? How can this kind of thing possibly be good for the child?

I’ve never had a relationship breakdown, but if I did, I would do my best to make things as amicable as possible for the sake of the children. Of course it takes both parties to achieve this, and I know it isn’t always possible. I know a woman whose ex-partner screamed at her and physically threatened her at handovers of their child, and then, when the child recoiled from the father, he accused his ex-wife of “turning” the child against him. (Could he not see that he was turning his own child against him by his behaviour? Apparently not. Of course, this lack of insight was part of the reason the marriage failed in the first place.)

In any case, people just have to accept that their former partner may well find a new partner and that this new partner will have a role in their child’s life. It takes a little compromise on everyone’s part, and the parent who won’t compromise may find that the very thing they fear occurs and they end up alienating their child because of their attitude.

The Israeli military cancelled a planned raid on a Palestinian village after one of its soldiers posted details of the operation on Facebook.

The unnamed soldier revealed the time and place of the raid and the name of his unit on the social networking site. He said on his status update that his unit planned a “clean up” raid.

The soldier was court-martialled and sentenced to 10 days in prison. He was also ousted from his battalion and relieved of combat duties.

“On Wednesday we clean up Qatanah, and on Thursday, God willing, we come home,” the soldier wrote on his Facebook page. Qatanah is a village in the West Bank near Ramallah.

His Facebook friends and fellow soldiers reported the post to the authorities.

The decision to cancel the raid was made by commanders after it was feared the leak would put the unit in danger. The operation went ahead several days later.

- BBC News

It was all polite smiles and meticulous protocol as Jacob Zuma met the Queen yesterday afternoon. But just hours before he left for his state visit to Britain, South Africa’s flamboyant President revealed what he really thought of his hosts.

In an astonishing interview given shortly before he boarded his flight to London, Mr Zuma launched a scathing attack on the British, accusing them of being cultural imperialists with colonial attitudes who still viewed Africans as “barbaric”.

“When the British came to our country they said everything we did was barbaric, was wrong, inferior in whatever way,” he told The Independent’s sister group of newspapers in South Africa. “Bear in mind that I’m a freedom fighter and I fought to free myself, and also for my culture to be respected. And I don’t know why they are continuing thinking that their culture is more superior than others, those who might have said so.”

The catalyst for Mr Zuma’s remarkable outburst was criticism from a number of British columnists who questioned the President’s polygamy, a common and accepted practice among South Africa’s Zulus…

However, at a state banquet last night, Mr Zuma praised the help Britain had given South Africa in its transition to a new democratic government. “We cannot forget the extraordinary role they [the British people] played at the forefront of a global movement for a free South Africa, as the global anti-apartheid movement has its roots in this country.”

His comments in the interview threatened to overshadow what was supposed to be a three-day visit to strengthen ties between Britain and South Africa. Gordon Brown stood alongside the Queen to greet Mr Zuma and the two leaders will hold talks today…

For his opening meeting with the Queen and Prince Philip on Horse Guards Parade, Mr Zuma wore a long coat and black suit to protect him from the March chill. In South Africa, the 67-year-old often greets dignitaries wearing the traditional Zulu dress of leopard skin loincloth and shield. Mr Zuma’s Zulu heritage may also have provided the impetus behind the Queen’s gift to him of a mounted bronze stag and a book entitled Hunting And Stalking Deer. A representative from Mr Zuma’s office, however, admitted he had no knowledge of the President being interested in hunting.

Mr Zuma’s gift to the Queen was a sculpted chess set depicting traditional Zulu warriors – although he soon discovered that a similar present had been given to the Duke of Edinburgh by his predecessor Nelson Mandela years earlier. Noticing the hand-painted ceramic set on display in the Palace Picture Gallery, a slightly crestfallen Mr Zuma remarked: “Oh, that’s another set.”

- The Independent

Okay, so I couldn’t resist it either…

UPDATE: My apologies to those eagle-eyed readers who have noticed the corrected funnie. As SL has kindly pointed out, Ian Smith was the racist white prime minister of Rhodesia, PW Botha was the racist white prime minister of South Africa.

A friend pointed me to the video below, which, I think, combines ‘all the above’ in about equal measure (death, destruction, weird sex and squick). It made me laugh, but in the same way that large chunks of Python make me laugh: with a creeping sense of, oh no, you mustn’t, it’s cruel!

Palmer’s response to the blanket refusal of UK radio stations to play the tune was to point out the following:

I suggested that I might be allowed to play it if I just slowed it way down and played it in a minor key. Think about it. If they heard the same lyrics against the backdrop of a very sad and liliting piano, maybe with some tear-jerking strings thrown in for good measure, would they take issue?

She’s got a point, especially considering the success of Ben Folds Five’s Brick, which does the appropriately sad lilt with a side-serving of ‘rite of passage’. Interestingly enough, Ben Folds is often Amanda Palmer’s producer, so it’s clear that neither disapproves of the other’s approach. They just approach the topic differently. I suspect Palmer’s above comment is a tongue-in-cheek reference to Brick, which even gives us some strings.

Alternatively, Ben Folds just prefers to write sad songs, while Amanda Palmer just prefers to write happy songs. Even about poor old Leeds United, who may have missed the transfer window for all time.