And yes, I do have a dog in this fight ;)

By skepticlawyer

podbor88_23It has long been my view that Gerard Henderson and Michael Danby and Colin Rubinstein do not actually accept the logic behind having freedom of speech. Instead, they have jumped on the fashionable bandwagon that seeks to control how one’s ‘group’ is portrayed, hence their support for legislative piffle like s 18 (c) of the RDA.

Here’s a tip, gentlemen: outside the very limited protection provided by the tort/delict of defamation, attempts to control how others represent you is not just a dead end, it’s a pointless dead-end, much like all those university cafeterias and Oxbridge colleges that refuse to sell the Sun on account of page 3 girls.

Students don’t read the Sun anyway, you see. The cafe or student shop or college is making an utterly empty gesture.

Section 18 (c) will not stop people disliking minority x. It will just make them inclined to dislike minority x in private, and probably with greater intensity. Banning porn will not stop people seeking it out, also with even greater intensity. Etc.

Laws regulating representation just don’t work. Seriously, activists who think they can use the law to make others think well of [insert oppressed group here] are absolutely kidding themselves. Because belting your opponents over the head with a statute-book will not make them think well of you. In fact, they may suspect you’re a control freak.

Oh yeah, and equating support for freedom of speech with support for terrorism is quite possibly the lowest, cheapest stunt you can pull, and Catallaxy’s Sinclair Davidson is entirely correct to call you on it:

It is simply astonishing that Henderson should single out for special criticism the two men who did a lot – a very, very lot – of the heavy lifting in the free speech campaign that the IPA, under John Roskam’s excellent leadership, ran against Conroy’s obscene media laws. We are all in their debt, yet Henderson does the smear. In his op-ed he is attempting to link concern for civil liberties to support for terrorism.


There are always a few malcontents who engage in acts of extreme violence. It doesn’t matter if they profess to be Muslim or Marxist or Anarchist or Patriots or whatever. Their acts of terror condemn them whatever their motive. Anyone who says different is a moral dwarf.

Liberal societies maximise the freedoms of their citizens. Illiberal societies do not and usually contrive excuses to limit those freedoms. Being “at war” is a common excuse to limit freedom.

Linking a domestic campaign to retain free speech rights and privacy against the State to a act of terrorism on the other side of the world is not just a long bow, it is incredibly grubby.

I am also somewhat surprised by the allies Henderson has enlisted. Michael Danby – a member of the ALP who would have voted for Conroy’s anti-free speech legislation and Colin Rubenstein – a supporter of s18(c). Shame on you both. Unsurprising that those two would criticise Chris Berg and Simon Breheny. Danby and Rubenstein lost the free speech debates.

Look, I get why Jewish people and gay people and women and [insert minority/oppressed group here] don’t like being accused of conspiring to take over the planet or being reduced to a headless torso in news photographs or called ‘unnatural’ or whatever, but the point is that as soon as you try to protect groups qua groups you paint yourself into the same intellectual corner as the Cretan chap who told the world ‘all Cretans are liars’. You also start to forget what’s important, and what you can control (ie, the limits of law).

It is possible to have recourse to fact when discussing an individual (this is why defamation exists). It is very, very difficult to have recourse to fact when discussing groups: look at the tangled mess in which evolutionary psychology finds itself because it so often fails to make the point about ‘statistically, our research indicates…’

Whole academic disciplines have foundered on this particular shoal. The law should not aim to be one of them.

And for those who wish to change how they are represented, just keep on doing pointless stuff while abortion rights remain insecure in several Australian states, wingnuts blockade the entrance to a shop run by a well known Jewish chocolatier, and same sex marriage in Australia looks like being about 10 years off thanks to a combination of the Shoppies and Tony Abbott (ie, it doesn’t matter which party occupies the Aztec temple in Canberra).


  1. Dave Bath
    Posted April 24, 2013 at 10:47 pm | Permalink

    Blasphemy laws are probably these writ large – and maybe those you are aiming at in this piece would do well to consider blasphemy laws, why they don’t work “inside the head” even if people are silent in public.

    Saw this – would love to know who wrote it:
    “Blashphemy is an act of expression that has been outlawed to prevent your religion losing arguments.” (Unknown)

    I wonder if there is a analogous slapdown for “not insulting groups” laws, as this is about “not insulting gods” laws.

  2. Posted April 25, 2013 at 4:29 pm | Permalink

    I’m not sure it’s productive to conflate the issues of the government’s role in managing group dynamics through minor restrictions on speech and it’s role in protecting society against direct physical threats by detentaining individuals on the basis of extrajudicial determinations. The only thing these issues have in common is the mind-numbingly predictable way IPA style libertarians will come out against government taking responsibility.

    equating support for freedom of speech with support for terrorism

    I can’t find anything in Henderson’s article that equates freedom of speech, or anything else, with support for terrorism. The article simply points out that government intrusion may be necessary to prevent future acts terrorism. Arguing that potential violent terrorism is a more pressing issue than potential governmental tyranny is hardly “the lowest, cheapest stunt you can pull”. Of course suggesting that we’re “at war” is about as hyperbole as the constant implication we’re on the verge of suffering from Stalinistic oppression.

    Illiberal societies do not [maximise freedom] and usually contrive excuses to limit those freedoms.

    The implication that societies that choose to balance freedom with other concerns are ‘illiberal’, or that those concerns are necessarily contrived, seems a bit problematic.

    outside the very limited protection provided by the tort/delict of defamation

    I can see the conservative argument in favour of these legal actions, but I never understood why libertarians are so ready to accept them. Surely under libertarian principles people should be free to tell whatever porkies they wish, and it should be up to individuals to determine how much they’ll rely on what others say. Once you accept that abstract concepts such as reputation matter, and that indirect harms through defamation are legal issues, it seems only natural to extend those concepts to more abstract and less direct situations that involve reputations of classes of people.

  3. Posted April 25, 2013 at 4:55 pm | Permalink

    Only some libertarians. There are quite a few who would do away with defamation entirely. These tend to be the Rothbardian crew, and Robin Hanson has argued that one of the reasons some libertarians are so opposed to defamation laws but so in favour of laws that prevent violence is because they tend to win verbal stooshies but lose physical ones. It’s a cynical observation, but I think there’s a grain of truth in it.

    I’m coming out of a Hayekian tradition, which can get very close to Burke at times: defamation is very old, and evolved independently in the two great ‘law-giver’ societies. It also evolved in part because when individuals could not defend their reputations in a non-violent way (ie, in court), they tended to do it violently (the number of duels in England dropped off dramatically once defamation took its modern form in the 18th century).

    The difficulty, of course, in extending the same presumptions to groups is the one I make in my piece:
    If I say ‘minority x does y’, then the argument either has to be left to the statisticians, or is incapable of solution (sometimes this remains the case after the statisticians have been at it). If I say ‘individual x does y’, that’s a question of fact in all the circumstances. This is the very basic reason why section 18 c is bad law (as opposed to having a chilling effect on free speech, which is a separate issue). It’s a bad law because it’s incoherent. That’s how Geoff Clark managed to win against Andrew Bolt, something I still find extraordinary.

    LE: I have had that argument suggested to me, but did not want to put it in the piece, because if it is true, it’s a dreadful slur on Australia and Australians. It’s kind of like an automatic Godwin: ‘oh, next step Hitler or Rwanda’.

  4. derrida derider
    Posted April 25, 2013 at 4:57 pm | Permalink

    the free speech campaign that the IPA,… ran against Conroy’s obscene media laws

    OT, but that is typical Catallaxy (and IPA too) crap. Conroy’s proposals, whatever their merits and demerits, were far weaker than, say, the Press Council’s powers in the UK. The UK tabloids are not noted for their intimidation by the Press Council.

    And before the glibertarian pile-on, let me say I agree that s18 of the RDA is overly broad and probably quite counterproductive in its effects as well. Democracies can indeed be endangered by consistent hate speech (think Weimar) but absent that clear and present danger hurt feelings should be no basis for action at law.

  5. Posted April 25, 2013 at 5:04 pm | Permalink

    The law is in the process of changing, DD – legislation is working its way through the system now. We will almost certainly finish up with a statutory press regulator, mainly because the journalists are behaving like the bankers: absolutely refusing to admit that they may have earned some of the public opprobrium heading their way.

    The tabloids do not fear the Press Council because it (a) can only recommend, not enforce, and (b) it has been subjected to regulatory capture (it’s basically run by the press, for the press).

    Also, we’re all forgetting Conroy’s demented internet filter proposals.

  6. Posted April 25, 2013 at 7:04 pm | Permalink

    [email protected], yes but that point is more a pragmatic one than an ideological one. There’s certainly going to be more difficulty in applying the law to group based claims, but I don’t think this fact necessarily results in a conclusion that its not possible to apply such a law. For example, the law could be framed in terms of ‘having reasonable grounds’ for a belief rather than necessarily having the statement be true. Obviously the more abstract or indirect the issue the more cause there is to err on the side of freedom, but I think there is room for a more gradual decrease in the constraints on freedom we put in place to achieve a civil society.

    I recall the last defamation case I looked at, the judge basically pulled the damages amount out of thin air. So a lack of precise evidence doesn’t seem to be overly consequential in dealing with such matters.

    hurt feelings should be no basis for action at law.

    I’ve always felt that hurt feelings shouldn’t just be dismissed by the law as unactionable. They might require a more nuanced approach, but I don’t think some obligation to be considerate of other peoples feelings, in a Lord Atkin neighbourly sense, would necessarily be all that imposing.

    The internet filter is another beast altogether. Granting the executive direct control over universal content filtering is vastly different to application of some legal standard on a case by case basis. Although that didn’t even make it into a bill IIRC. Meanwhile the US Congress is continuing it’s own war on the internet..

  7. Mel
    Posted April 25, 2013 at 10:24 pm | Permalink

    I don’t really have a fixed opinion on this issue. I seem to change my mind every other week.

    Would it have been a good idea to clamp down on inflammatory rhetoric in the former Yugoslavia before the talk turned to violence?

    Words have consequences. I’m aware of studies showing a correlation between genocidal behaviour and radio broadcasts in Rwanda. Fourty years ago a not insignificant number of murders were hate crimes against gays. I suspect the anti-gay rhetoric of certain public figures helped legitimate such violence.

    Maybe it a case of horses for courses. Australia is today a generally peaceful and mature place, so maybe laws against incitement and defamation are all we need.

    But if we got into another Cronulla riot type situation and the tit for tat violence and inflammatory rhetoric seemed to be escalating with no end in sight, maybe something like RDA 18(c), enacted temporarily with a sunset clause of 12 months or thereabouts, could act as a circuit breaker.

    As we were reminded last year with the London Riots, the veneer of civilisation is scarily thin.

  8. derrida derider
    Posted April 29, 2013 at 3:09 pm | Permalink

    All synagogues and Jewish schools I’ve ever seen in Australia have to be under surveillance and armed guard … can you think of any other religion which has to do that as a matter of course?

    Err, Islamic schools and mosques that are not in predominantly Muslim parts of Sydney have to have such arrangements too. And I’m sure neither Sydney nor Islam is alone there. Antisemitism is, I fear, only a small part of current day religious and racial bigotry.

  9. Posted April 29, 2013 at 3:52 pm | Permalink


    slamic schools and mosques that are not in predominantly Muslim parts of Sydney have to have such arrangements too.

    Not the case in Melbourne. Here, Jewish schools and synagogues have much higher levels of security than other schools and places of worship do.

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