The ABC News report on the government’s legislation to repeal section 18C of the Racial Discrimination Act, motivated by the Bolt case, makes interesting reading. Foreshadowing the legislation designed to prevent future cases of this kind, AG George Brandis notes that it defends “the right to be a bigot“.
Brandis didn’t draw the obvious implication, but he didn’t have to. Bolt has made a career out of pandering to the bigotry of his audience. As with others in the crowded field of rightwing journamalism, it’s not clear whether Bolt himself is a bigot, or whether he just plays one on the Internet, but the act is loud enough to please his ignorant and bigoted readers, and skilful enough to earn him plenty of friends among people who should know enough to be ashamed of themselves.
I don’t have a fixed view on the legislation in question, but my feeling is that racial bigotry should, at the least, be an aggravating factor in cases of individual defamation. If that rule were applied, the plaintiffs in the Bolt case would almost certainly have received substantial damages in individual defamation actions, given the findings that Bolt’s racially loaded claims about them were factually false and “not made reasonably and in good faith”.
Update I should have mentioned that “bigot” is a euphemism for the R-word, which our defenders of free speech insist must never be applied to anyone, with the exception of one person who is excluded here by virtue of Godwin’s Law.
John Quiggin 
Brandis states it is a right to be a bigot and that this right begins with speech. He doesn’t say the right ends with speech. So where does it end? With the written word? Signs? Actions? Speech is so often the precursor to action. People speak to test and modify what is socially permissible. Where they find open permission for spoken biogotry they will feel emboldened to act. Permitting blatant bigoted speech is the fast track to blatant bigoted actions. It starts with speech, it ends with bashings and shootings.
So, on Ikonoclast’s logic, was the Menzies government right to ban the Communist party? Was the High Court and the Australian electorate at the subsequent referendum wrong to have stopped them from doing so? After all, the link between Communist words and violent overthrow of the State is far more explicit and direct than the link between Bolt’s slimy pandering to racist setiment and any sort of racial violence…
I have to admit I find myself almost agreeing with Brandis on this one (and yes, I do suddenly feeling like I want to shower). While I’m implacably against laws banning religious vilification (religions are ideas and all ideas must be subject to criticism and even abuse), I do see the case for racial vilification laws (people can’t choose their race). However, my default position is free speech and so I do find my support for even racial vilification laws a little uncomfortable. Part of me would prefer the racists in our midst out themselves and be ostracised than be silenced and pass amongst us unknown.
What worries me is that we often forget that the most important speech to protect and encourage is the “negative” speech, by which I mean criticism of other speech. It’s criticism (including mockery and ridicule) that drives bad ideas out of the public discourse. It’s ridicule that made racism and sexism so embarrassing for racists or sexists that they now have to twist themselves into pretzels trying to portray their views as not racist or sexist – and this is a good thing. Part of me wants the racists to come forward and say racists things – so we can all mock and ridicule and shun and ostracise them for doing so. It’s primarily criticism (including mockery and ridicule) that disciplines public discourse, and I think in most cases, rather than resort to the violence of state power – we should leave it to criticism to perform that disciplining function.
Having said that, I agree that Bolt should really have gone down for good old fashioned defamation rather than the compromised and dubious provision he did lose on. And yes, I do thing racist humiliation should be a factor that sounds in damages for that defamation. But the key thing that distinguishes Bolt’s case was that his claims were *untrue*.
And I also wish John’s comments had an edit function. My typing, spelling and grammar are hopeless today!
George Brandis is exercising his “right to be a fool” which doesn’t need any federal or state legislation. What he hasn’t thought about is the unintended consequences of “the right to be a bigot”.
On another issue, what does the Australian Constitution have to say about this – possibly nothing? In which case, how will the High Court view a legal challenge to any legislation introduced by Brandis to allow people the “right to be a bigot”? My understanding is that in the event of the Australian Constitution being unclear on “bigotry”, the High Court has to, in effect, interpret what it thinks is the ‘will of the people’ in order to pass judgement.
What if the States (or one of the States) challenge the right of the Commonwealth to legislate on “the right to be a bigot” on the grounds that bigotry is a State responsibility? And how will the “right to be a bigot” affect Australian sport with its across-sports bans on “racial vilification” by competitors and spectators?
Will the “right to be a bigot” cause problems for Australia with regard to some international agreement or convention to which Australia is already a signatory? Are the Liberals floating this idea to gauge the public’s response or to distract them from other issues? So many questions!
With his “right to be a bigot”, it would appear that George Brandis got stuck on the bottom of one too many rucks in his rugby union playing days.
@Benjamin O’Donnell Yes, I remember that time when ridicule and laughter stopped climate deniers from the folly of their ideas, saving the planet from certain disaster.
British Columbia has a hate speech law that prohibits the publication of any statement that “indicates” discrimination or is “likely” to expose a person or group or class of persons to hatred or contempt.
Professor Sunera Thobani of the University of British Columbia faced a hate crimes investigation after she delivered a vicious diatribe against American foreign policy. Thobani remarked that Americans are “bloodthirsty, vengeful and calling for blood.”
The Canadian hate-crimes law was created to protect minority groups from hate speech.
But in this case, it was invoked to protect Americans from racial hatred.
Who will the speech police come for next?
@George Montgomery All Parliament is doing here is scaling back existing legislation. I can’t see any scope for a High Court challenge.
Indeed, the difficult (but soon to be academic) question was whether the legislation Brandis is repealing was constitutionally valid in the first place. It was passed under the external affairs power (because Australia is a party to the UN convention against racial discrimination), but there was always a nagging question in my mind of whether the law infringed the implied freedom of political communication…
@Jim Rose [innocent whistle] Out of interest, what was the result of that case? [/innocent whistle]
@Phil Well, as a liberal (SMALL “l”), I think them’s the breaks in a democracy. If my side (you know, science, the enlightenment, basic sanity) can’t get its act together sufficiently to win the public argument, then we deserved to lose.
@Phil
Puts me in mind of Peter Cook and “those wonderful Berlin cabarets which did so much to stop the rise of Hitler and prevent the outbreak of the Second World War”.
@zoot Given centuries of Christian anti-Jewish propaganda, an economy devastated first by war, then by hyperinflation and then by austerity, I seriously doubt a suite of anti-vilification laws would have saved the Weimar Republic…
Oh yes, and I call Godwin.
I think there’s a whole new concept available here that I’ve already raised with the local tourist bureau which is the promotion of small hamlets and down and out country towns as ‘free speech zones’ where every bigot is welcome. I think it’ll knock Tidy Towns out of the competition.
@Benjamin O’Donnell
The investigation was dropped.
Deleted in line with previous warnings
Hi Benjamin,
Nice to hear from you so often.
I assume Jack Strocchi has a long history of provocations? Because the post I saw, while silly, didn’t seem banhammer-worthy in itself. But, not only do I not know the history, this is Professor Q’s party and he can fry who he wants to…
@Phil
Silly. Do try and use the blue pencil before you let your thought bubbles loose.
Free speech is a means to an end, not an end in itself: we want better answers, and we want it that nothing useful or conducive or possibly-conducive to building better answers is excluded.
But bigotry is by-definition unthinking, thus implicitly of no use in generating better answers. Speech that is bigoted is ipso-facto no loss: speech that has been reliably determined to be bigoted is likewise reliably determined to be useless for the purpose of getting better understandings. We don’t lose anything we might possibly want by excluding bigotry: we might lose things-that-are-wrongly-classified-as-bigotry-but-aren’t, “chilling effect” and the related, but that’s not what Brandis is arguing here.
@George Montgomery
Good stuff, especially the point that defamation actions should have been brought for the one or two plaintiffs that would have succeeded. (Separate actions of course because each person has his/her separate reputation and doesn’t have to team up with the likes of Geoff Clark). But you might reasonably have dealt too with the critical word “offend” which is so bizarre that it is a prime exhibit for those who decry what they call the “nanny state”.
In normal conversation racism means racial bigot. So I would say “racist” is a euphemism for “racial bigot” rather than the other way around. The term bigot can be used more generally than just racial bigots. There are religious bigots who hate Catholics and regard them as inferior in some regards. Sexuality bigots who regard homosexuals as less worthy. etc. In terms if racism it is not the mere observation or articulation of racial differences that should upset people. It is bigotry that should concern us. So I’d be careful in how you mince the terms.
I don’t think hating people should be illegal. And if hating certain types of people isn’t a crime then admitting to it certainly shouldn’t be either.
Statutory Interpretation is usually a whole subject in law degrees, but as a general rule it requires only reasonably simple comprehension skills.
The relevant sections of the Act are not terribly complicated. The whole thing reeks of the same tactics used against “Land Rights” after “Mabo” when we were supposed to believe “they” (nudge, nudge, wink, wink – “we” know who “they” are) were coming to take our backyards from us.
This is similar BS – unsurprisingly coming from the same quarters.
Read the parts of the existing Act and decide whether you are being oppressed (and have been since 1975 without realising it!):
RACIAL DISCRIMINATION ACT 1975 – SECT 18B
Reason for doing an act
If:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.
SECT 18C
Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
SECT 18D
Exemptions
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
To those who are entertaining the idea that these laws are a problematic restriction of free speech, I point out that they’re far less stringent than normal defamation law. Do you believe that defamation law ought to be done away with? How do you believe 18c substantively differs from normal defamation law? As it does not, is your opposition to these laws perhaps hypocritical, or based in your contempt for ethnic minorities?
The trouble with rules on freedom of speech is that its up to the courts to decide when you’ve gone too far. Someone who deliberately whips up ill feeling against an ethnic group, with the obvious aim of getting others to attack or victimise that group, should probably be fined or jailed. But if you offer an honest opinion on some aspect of a particular culture, for example on Indian attitudes to sexual assault, should you be in trouble if people take offense?
Which doesn’t alter the fact that Andrew Bolt is a dickhead.
Yes.
John, your update is incorrect. Free speech defenders also think it’s OK to suggest that people complaining about racism are the real racists.
I disagree with Bolt on fair-skinned Aborigines but I agree that free speech is under threat with the current legislation in place.
Who is a bigot? Some people like Marcia Langdon would claim that Bolt is a bigot then apologises to him on air. She even claimed that Professor Tim Flannery was a racist! If bigotry is in the eye of the beholder than we as a nation are stuffed! Some people want to see offence and pressure groups rewrite what is appropriate and not. This law was misapplied with Bolt but how long will it take until it shuts down robust discussion because a person was “offended” even if they are looking to play the victim. It is an insidious erosion of civil liberties.
@Benjamin O’Donnell
Either your understanding of Godwin’s law or your comprehension is faulty. Good thing we all believe in freedom speech.
Fair enough then. I think you’re wrong, but at least you’re consistent, unlike Andrew Bolt.
@TerjeP
After many hours at the Shearer’s Armpit, just this arvo, during which I did participant observation research on the issue of free speech, I conclude that most people objecting to impediments to free speech would feel much less aggrieved if Australia had half way decent dental health care. In other words, the Coalition represents the toothless hillbilly vote. Now, that’s a scary thought. Almost one in two of your fellow citizens is a throwback.
Benjamin @2
Your analogy between the proposed CP Dissolution Bill and s18C is silly. Nobody was taking any of Bolt’s assets — not even the civil plaintiffs, whereas the Dissolution Bill sought actively to destroy a political organisation and to render their activity criminal. Bolt was merely sooking be ause his employer had to apologise on his behalf. Also, as you should know, S18D offers an affirmative defence — which test Bolt failed because his post was merely a collection of racially framed slanders rather than an attempt either at fact-free racist opinionating about non specific people he didn’t like, or specific people who had done something wrong.
More broadly, no country in the world has untrammelled free speech. Every country restricts it in some way. Some of the restrictions are reasonable, so the question becomes “what is reasonable?” That entails examining comparatively the harm of the imposition and the benefit associated with the constraint.
Here, the arguments for keeping 18C and 18D are strong, because the imposition is trifling and the benefits significant. Nothing prevents Bolt from being as bigoted as he pleases. He must show good faith though and if he has simply made up stuff that can be checked, people might be misled into buying his drivel.
That seems a reasonable balance to me. The right of free speech, if it exists at all only requires that the state should not persecute you, or suffer anyone else to do so, on the strength merely of one’s opinions. It doesn’t restrain people from seeking legal redress if you’ve made up rubbish about them to defame an entire class of people.
People do have the right (if that is the correct term in a jurisdiction where codified human rights are absent) to be bigoted. Others of course have the right to call them bigots and to discourage people from giving them the time of day. It is interesting though that the only human right Brandis is willing to recognise is the right to vent your hate and fear of your fellow human beings and your disgust that they be getting some advantage that is denied to you.
@TerjeP
I’ve put this to you at least once before and you never answer:
“Libertarians believe that you should be able to do whatever you want as long as it doesn’t adversely affect someone else. Therefore how can you advocate for the ‘right’ to destroy someone’s character, reputation, integrity, business through telling lies about them without any recourse against the person or organisation that destroyed them?”
If I remember correctly, you run some kind of small business. If that is like most small businesses you have only one thing of true value – your reputation.
If someone maliciously destroys your reputation and that of your business (not by telling the truth but by deliberately telling lies about you and your business) I would expect that person to be subject to a legal process where they would have to make good to you for destroying your business and reputation.
As I understand it, you couldn’t care less should someone do that.
If someone decides that they should be at liberty to steal your car and burn down your office would you do a little libertarian dance of joy? (that last bit is sarc by the way, but you get the point?).
@Megan
Yeah, but as Libertarianism is a fantasy land, why argue about how its residents should behave?
@John Brookes
Because their friends in “neo-con land” keep breaking out and infiltrating the real world and dictating to us how our world should be run.
They might appear harmless and silly to you, but I am terrified of them and their fascist agenda.
Megan,
As much as we value our reputation, and should if we are wise seek to protect it, I don’t think we own it. Your reputation is a set of thoughts and opinions that reside in other people’s brains and the thoughts in somebodies brain belongs to them not you. Of course somebody who spreads untruth does create a cost to society and the person who the untruth is about is probably best placed to seek remedy or undertake punitive action be it legal or otherwise. But that does not amount to reputation being owned. In other words there may still be a utilitarian case for defamation law but it does not in my opinion flow logically from property right concepts.
In any case under Australian law people may be dissuaded from defaming me by the threat of litigation but they are entirely at liberty to defame my business. A corporation can not sue for defamation. But it’s reputation, or good will, is often what buyers of the business would value.
One of the worst things that can happen to your reputation is a criminal conviction. But merely being charged for certain types of crime will carry a social penalty. If a man is charged with rape for example that will impact his reputation. If acquitted should that man then be free to sue the state? Should he be free to sue those that accused him and any witnesses that testified against him? Typically such people are protected by legal privilege. And of course politicians in parliament can say anything they want.
So who then really benefits from defamation law. A select few. And given they don’t own their reputation the question is whether defamation law offers society a net benefit. In other words do the benefits exceed the costs. I my view they don’t. Defamation law may dissuade some fibs but in practice not so much. And it definitely puts a chill on robust public debate as JQ indicated by the fact that he felt legally vulnerable (even if merely the hassle and cost of a potential legal defence) during some of his more robust debates with Andrew Bolt.
Terje “As much as we value our reputation, and should if we are wise seek to protect it, I don’t think we own it.”
So who does *own* your reputation? For a libertarian everything is property. I thought.
I presume the R-word is ‘Redhead’ or ‘Ranga’!!
Shrillness is common-place is political discourse as is ignorance and ill-manners.
In the 1980s, the cartoonists went a search for Ronald Reagan’s brain.
You lot and Jerry Falwell ought to get together and discuss hurtful political rhetoric.
There is a good discussion of political manners is in the Supreme Court judgment on Larry Flynt–Jerry Falwell case, which included a 200 year history of American political cartoons. The Court held that
More than a few times was anti-Catholic spite and bile hurled at Tony Abbott. Who complained here? Who ran to his defence here?
@Fran Barlow
Thanks for the reply, Fran. The two cases were so un-analogous I had a “Why bother?” moment.
Jim Rose, lol “You lot and Jerry Falwell ought to get together and discuss hurtful political rhetoric.”
You lot? So unlike Terje who is an unaligned individual who identifies as a libertarian and not a member of a tribe, you are claiming to be a member of ‘the other’ tribe? Or am I using the wrong style of rationalising?
Who is Jerry Falwell? I must be an ignorant member of the ‘you lot’.
The way I, and a lot of lefties I know are looking at and trying to understand hurtful political rhetoric and other nasty behaviour that human beings are noted for, is to understand how the human brain works and what makes us the same and also different from each other.
It is a more rational way to look at the problem surely?
@Ikonoclast
Not a problem. It was a huge stretch, even by internet false equivalence standards.And while suppressing the free speech of ostnsible commun|sts may have been an objective, the CP Dissolution Bill was aimed primarily at curtailing freedom of association — an entirely different right. One might also have spoken, were this the US, of the Fourth Amendment — which affords protection against unlawful search and seizure and so forth.
@TerjeP
Who mentioned “property”? As I said, this is about being “free” to maliciously destroy a person’s livelihood.
A company can sue for defamation if it has less than 10 employees.
The other problem with your examples, apart from the fact that privilege quite rightly applies to court proceedings, is truth.
So you are quite happy for someone – even a powerful member of the elite with a megaphone – to destroy your reputation by spreading lies about you?
PS: Jim Rose: Can you please provide a couple of examples from this site of “anti-Catholic spite and bile hurled at Tony Abbott”? I don’t remember any.
I have no problem with people being bigots, as long as they recognise they have an obligation (legally enforceable, if needed) to just STFU and not bother the rest of us.
DI (nr), in an ideal world that is exactly what we could expect; be a bigot but don’t do that trash talk where I can hear it or see it.
It seems Brandis is going to do ‘community consultation’ on the matter. I’m thinking of making a submission of all of the race based epithets and slurs that I have been unfree to use since the rise of the nanny state. A celebratory declaration of my rights to express bigotry. Think that’ll help?
David – I’d rather bigots were open about their hatred. Much easier to ostracise them and keep them away from positions of power and influence if they are open about their outlook.
You drew a comparison between an individuals reputation and their car. So I thought you were leveraging notions of property and ownership. If somebody destroys a car that I don’t own then baring extenuating circumstances I’m hardly due compensation or the ability to launch punitive action.
Free speech for all individuals is a naturally worthy goal, and less rules always seems better (all other things being equal). One simple rule – ‘free speech’ for all . I would also like free actions too -I would like to be able to do to others whatever I like. First I would find mr Bolt. Its not that simple tho. I’m not sure about 18c in particular but i dont think it is necessarily a problem if rules are complicated and sometimes ambiguous as that is the way the real world is .
Everyone accepts limits on physical actions but I dont think the distinction between speech and actions is so clear .Im pretty thick skinned myself but even I know that words can sometimes hurt much more than physical actions -it could be better to be given a shove than to be verbally assaulted. Words have caused people to end their own lives or lash out at others .Words cause physical changes in the recipients brain -then they may become depressed and lose weight .Words can cause enormous physical violence to follow . Words are closely related to action in the physical world -If I say ‘people are inherently selfish ‘ until everyone believes it, then over time the world will become different physically .
Any society needs protections from physical and verbal violence -the real world is a messy place so the rules may be messy too. Bolt got in trouble because he visited high level violence on his victims repeatedly.
@Julie Thomas In the 1980s, a top cartoonist went in search for Ronald Reagan’s brain. Was that hateful and bigoted?
More than a few hate capitalism and speak in unflattering tones of the successful and other class enemies. Mises explained the youthful allure of socialism thus:
@TerjeP
OK, and now that you understand I wasn’t saying reputation and good fame are “property”, what about the rest of my question? (ie. destroying a person by telling lies about them without consequence)
I wonder how much thought went into the drafting of the phrase ‘offend, insult, humiliate, or intimidate’. The inclusion of all four words suggests awareness that they are not interchangeable.
I find it easy to see why intimidating people should be against the law–in fact I expect it’s against the law independently of anything in the Racial Discrimination Act (and would be a little surprised to learn otherwise). I find it much, much harder to see why offending people should be against the law.
Insults and humiliation are somewhere in-between. I’m going to think about those some more.
What ‘offend’, ‘insult’, ‘humiliate’, and ‘intimidate’ do all have in common is that they are all _actions_, not states of being or traits. As things stand, it’s not against the law to be a bigot, or to be a racist, or to be bigoted, or, in short, to _be_ anything. It’s only things you _do_ that can be against the law. If there are any rights the law infringes, they can only be rights affecting what you do, not rights affecting what you are.