There have been quite a few recent cases raising questions around free speech and freedom of the press. Here are some thoughts, not all final.
First up, the question, raised by the cases of Peter Ridd and Israel Folau of whether employers can discipline or sack workers for their views on a range of issues.
Ridd is an academic at JCU who has expressed (often in intemperate terms) the (wrong and harmful) view that the damage to the Great Barrier Reef from climate change has been exaggerated. JCU sacked him, but his dismissal was found by the Federal Circuit Court of Australia to be unlawful.
This was a straightforward finding under industrial law, which accords no special status to academics. But there are good reasons why universities should adhere to a stronger standard, embodied in the notion of academic freedom. As the NTEU vice-president Andrew Bonnell said it’s clear that JCU breached its commitment to academic freedom.
The Folau case is much trickier. In a sense Folau’s religious views aren’t that unusual. Most Christian denominations hold, at least officially, that all non-Christians and all Christians who hold heretical beliefs will go to hell, along with Christians who die in mortal sin, which accounts for nearly everybody. But, as Brian Houston of Hillsong Church (not someone I expected to quote with approval) points out, telling people they are going to hell is not helpful either for religious tolerance or to convert them to the truth as you may see it.
What makes this case difficult is that Folau’s job is, effectively, one of marketing the Australian Rugby League so that it can attract sponsors (notably, in this case, Qantas). Whether or not Folau has a case against the ARL, no one can force the sponsors to renew the contracts, or, for that matter, the fans to show up (I don’t know many rugby fans, so this may or may not be an issue).
As is almost invariably the case, former Freedom Commissioner and IPA alumnus Tim Wilson comes out of this looking bad. Back in 2015, there was a similar case in which Scott McIntyre, an SBS sports commentator, expressed views about Anzac Day that were offensive in their content and even more in the way they were expressed on Twitter Even though McIntyre had nothing like Folau’s public profile, he was sacked. Wilson then “Freedom Commissioner” wrote that, since McIntyre was not legally prevented from speaking, there was no free speech issue
SBS simply decided it didn’t want to be associated with him. No one is guaranteed a job. Employers are not compelled to put up with behaviour that harms their public reputation.”
Now, Wilson is defending Folau against ‘censorship‘, even though, on the views he has previously stated, there can be no question of censorship in the absence of government action.
I wasted a lot of time on Twitter a few years ago, trying to pin Wilson down on this very question. I can now discern his position: if you say something acceptable to conservatives, it’s free speech, otherwise you can take your chances with the boss.
fn1. Just to tie things up neatly, denying the existence of hell is a heresy.
46 thoughts on “Freedom and the Commissioner”
One of the Cappadocian Fathers, St. Gregory of Nyssa, cautiously suggested that at the end of time even Satan would be redeemed, along with all the souls in hell. This Universalist speculation was condemned by the Church (I’m not sure which one), but Gregory has not been de-sainted. Institutional Christianity has included a good many admirable men and women, as well as far too many bigots and fools.
I think you mean the ARU or Rugby Australia as it is known now. Unfortunately Scott’s rant had his SBS motif wrapped fully around it whereas Israel’s social media has nothing. If you did not know he plays rugby then you would still be unwise.
Actually telling people the pitfalls of hell is one of the main evangelical devices.If they understns what it entails and how you get there then one is very interested to understand how to avoid it.
Hopefully, later tonight I am going to write a comment here about jury nullification trials. Because jury nullification trials tie together the subjects of freedom of speech, education, and religious observances. This will give anyone who is interested a chance to inform their local barrister (honestly I have no idea what that is I just remembered I have often heard the phase on Alfred Hitchcock flims many a time.), or their local attorney, or legal aid, or university law proffessor.
I will also issue an Islamic Fatwa. It will be binding on all Muslim members of the Scenic Path.
Some may argue that I lack the qualifications. I say that if there are any qulifiactions that I lack the systems administrator will inform me before hand.
The Folau case is much trickier. In a sense Folau’s religious views aren’t that unusual. Most Christian denominations hold, at least officially, that all non-Christians and all Christians who hold heretical beliefs will go to hell, along with Christians who die in mortal sin, which accounts for nearly everybody.
Saying homosexuals will burn in hell is even worse, in my view, than saying black people or Asians or whatever ethnic or racial group you choose will burn in hell. This is because, even though we’ve made great progress in gay rights over the past few decades, gay folk are still stigmatised, bashed, bullied in school and of course harassed by Christian bigots. The end result is depression, anxiety, low self-esteem and suicide. Folau is welcome to his vile attitudes but given his position as a high profile role model, his right to express his bigotry should not trump the rights of gay folk to life, liberty and the pursuit of happiness.
Actually, if it was up to me, religiosity would be declared a mental illness and the afflicted would be forcibly treated /ironic sarc off
People are obviously always going to have ‘problematic’ opinions, for a variety or reasons (immaturity, ignorance, desire to hurt/teach others I guess, help, and who knows what else). They may even hold them for only a brief moment.
In the past these would have had to be put in a newspaper or broadcast on the radio or TV (and then those broadcasting would have been at least somewhat accountable, and the opinion would have reached a few at a certain point in time only.
The social media have changed all of this of course and people can self publish any opinion that then is available to anyone interested. So the problem is not so much Folau (or his opinion) as is the fact that we don’t know how to deal with this new environment we find ourselves in. To complicate things, even many of the nation’s leaders express ‘problematic’ opinions, and have made the ‘us against them’ rethoric the norm. In the absence of higher moral standards, Folau is just more explicit (young and inexperienced and less hypocritical) in his views, compared to many ‘mainstream commentators’.
Folau is “less hypocritical”? I don’t think so. Why is he playing football for money and not for the glory of God since he knows so much about what God wants.
And is he casting stones? and Jesus said let him who is without sin cast the first stone..
Sportsmen and sportswomen are hugely influential role models, whether they like it or not. When someone like Folau expresses anti-gay bigotry on social media, that influences what happens in the schoolyard and it makes it much harder for young gay aspiring rugby players to take up the sport. Gay folk have been vilified for far too long. Folau was given one warning. In the circumstances, a private sector employer should, in my view, be able to fire him.
My comments were not to defend Folau.
As to casting stones, my point is (a minor point really) that the more seniour members of our society, who should know better (at least for their education and age level, and privilaged position in the society) regularly ‘cast stones’ of various kind (or send into people’s eyes), but in a way that does not attract attention, and yet is perhaps (I’d say definitely) even more harmful that Folau’s comments (various religious groups, the government refusing to acknowledge and help a variety of disadvantaged people for example, including homosexuals, until very recently). Folau may simply be a little behind on this.
My point is that he’s likely young (I don’t know anything about his beckground) and that he needs advice/help perhaps (from the wiki page he seems to have been a supporter of homosexual people once).
We’ve all had ‘problematic’ opinions at some point, but luckily most of us were not silly enough, or young enough, to share them on social media.
I wish people would think about causes behind things as well, rather than simply attack and blame (as this always sets a bad precedent).
This would be of benefit even to all those groups that Folau ‘insults’: Instead of a quick condemnation, we could see Folau and all these groups as part of ‘us’ and have a constructive discussion on how to help everyone (not only those we deem are ‘worthy’).
So have constructive criticism for sure, but have a rule against dehumanizing people, no matter who they are. This may result in everyone being happier. Acknowledge ‘faulty’ opinion as faulty, rarher than claim the human behind it is evil (they are human, perhaps sick, and in need of help, they have their reasons). Basically treat others the way we’d like them to treat us if we made a mistake.
One possible answer to this, evidently (and not at all to my surprise), is ‘It depends on what the enterprise agreement (or the contract) says’.
The judge in Peter Ridd’s case said that the decision turned on the correct interpretation of a clause in the enterprise agreement under which Peter Ridd was employed, and concluded that on a correct interpretation the University’s actions, including the dismissal of Peter Ridd, violated the enterprise agreement.
It seems Israel Folau’s employment is not covered by an enterprise agreement but by an individual contract.
Perhaps the matter will come to court and there’ll be a ruling, but it may be different from the ruling in Peter Ridd’s case for the natural reason that the legal conditions of employment are different.
As a drinker, I know I was offended
“I wish people would think about causes behind things as well, rather than simply attack and blame (as this always sets a bad precedent).”
Me too… AleD do you ‘feel’ attacked and blamed and if so can you explain what it was that triggered you to feel attacked and blamed? Could you recall the sequence of thoughts hormonal brain chemistry changes that resulted in you concluding that you were being attacked and blamed?
And second thought…is there possibly a way that you could have or could in future construe my comments as something other rather than attacking and blaming you? Is it all about you AleD or are you indulging in that exercise called jumping to conclusions.
But what do you think about Tim Wilson and his responsibilities as a politician to do the right thing. I don’t think Libertarians feel shame do they. Is it against their religion?
Andrew, I already knew I was going to hell because a couple of Jehovah’s Witnesses told me so; there seemed to be no doubt in their minds that I could find redemption even if I paid for indulgences or confessed. They said those sort of things were not part of their religion.
So I’ve had therapy and am living well despite being on Folau’s list.
But Tim Wilson is so diplomatic isn’t he – feels no shame so he can wiggle out of actually stating his position on things like this …” “I’m more of an agnostic, but I prefer to say that I haven’t found God but I’m on a journey and I may one day find God.” from Wiki with the original article linked.
A hard line Randist could not really find fault with that and yet it gives the middle aged elite liberal ladies in his electorate who adore him some hope that he will come to their church with his lovely partner.
I did not feel attacked by you (or anyone else).
What I was hinting at is that people, ie society (I don’t mean you Julie) often try to cure symptoms rather than the illness.
The question of whether employers are in fact able to dismiss employees for the expression of opinions can be distinguished from the question of whether employers should ever be able to dismiss employees for the expression of opinions.
I can’t think of any good justification for the suggestion that employers should never be able to dismiss employees for expressing their opinions; I am comfortable with the position that employers should sometimes have the power to dismiss employees for expressing their opinions.
The question which has the most practical interest for me is whether employees should have greater protection against dismissal than they do currently, to which my answer is ‘Yes’, although the question of exactly how to give greater protection involves technical issues which I’m not sure I’m equipped to comment on.
Phew AleD I am so relieved to hear that you didn’t feel attacked and that you like me are simply offering free advice to people, ie society about how to cure symptoms rather than the illness.
What is the illness you are aiming to cure?
An amendment to the Fair Work Act would suffice. However the Fair Work Act already provides protection against unfair dismissal, dismissal in breach of the terms of a fair work instrument and remedies for a general protection dismissal. Moreover, the Fair Work Commission can order reinstatement.
I have nothing more to add to my previous thoughts Julie.
Well, sure, but the technical question I’m not sure I’m equipped to comment on is what amendment to the Fair Work Act? It’s a bit like saying that what’s needed to reduce malpractice in the banking industry is amendments to the laws that govern banking: yes, but what amendments?
Again, sure, but saying that it provides protection is not the same as saying it provides sufficient protection: if I thought it provided sufficient protection I wouldn’t be suggesting that employees should have greater protection, now would I?
Israel Folau has 350,000 instagram followers. He posted his anti-gay hate speech in instagram. I imagine most of them are young and impressionable folk who are still figuring out what they believe. Folau does occupy a privileged position as a role model, he is 30 years old and his education level is immaterial in terms of the damage done by his views.
The suggestion that we shouldn’t bother with it too much because “people who should know better” are also casting stones is illogical and patronising and a tu quoque fallacy. It is illogical since if someone casts a stone and it attracts little or no attention, it is by definition comparatively unimportant. It is patronising because it assumes Folau is immature and/or incompetent. Surely that is an uncharitable view of Mr Folau.
I think a fairer and more reasonable view is that Mr Folau is honestly living his faith, which is of the pentecostal Christian variety- Folau is with the Assemblies of God. The Assemblies of God believe homosexuality is a sin that leads to hell and they believe they are on a mission from God to save souls. They also talk-in-tongues, practice faith healing and exorcisms. By Australian standards that is a little extreme but by American standards it is ho-hum (25% of Americans identify as evangelicals).
The question Western countries are currently struggling with is how best to accommodate freedom of speech and freedom of religion while protecting minorities and marginalised groups from the very real consequences of influential public figures expressing bigoted and demeaning opinions.
OK, given that the Fair Work Act 2009 already provides for reinstatement, injunctions to prevent dismissal and compensation, what “greater protection” do you believe is warranted? Is it possible that you don’t actually know what protections are currently available in the Act? There is no shame in not knowing.
“The question Western countries are currently struggling with is how best to accommodate freedom of speech and freedom of religion while protecting minorities and marginalised groups from the very real consequences of influential public figures expressing bigoted and demeaning opinions.”
I would argue that the minority (white anglo christian male) is the group struggling to maintain market dominance – it is their freedom of religion and speech that seems to be the issue.
In a ‘free’ market it’s those with the biggest (gun megaphone money) who tend to win.
One tiny problem, Rog. Israel Folau and a great many reactionary Christians are not White anglo males, they belong to minority ethnicities whose ancestors were converted during colonisation or more recently by evangelical groups.
And Folau was probably ‘indoctrinated’ by a ‘white australian male’.
But of course it is easier to blame Folau. Because we know that the weak and the disanvanteged are to blame for being susceptible to the machinations of the ruling class.
Scott Morrison, apparently an evangelical christian
Scott Morisson gets to keep his job, while everyone is only too happy to condemn Folau.
The first has milions of followers (the entire country), and one can’t choose not to follow him either; while the second has a few hundred thousand followers; the first has real power, while the second has very little power in comparison.
Where is the logic in this? Why is no one pointing at the double standars?
Wow, free speech in the work place, and as it relates to the work place, is a super complicated issue.
A government job guarantee, whether it is a Bill Mitchel MMT job guarantee, or some other kind of job guarantee makes it even more complicated. There is one type of economy in which all or almost all jobs are government jobs. There is another type of economy in which the government is by far the largest direct elmployeer, though one does not see that much anymore since the wave of privatization.
Then there are economies in which the government is a major direct employeer, especially when one adds up the different levels of the government, and an even bigger indirect employeer.
These cases seem to me to represent an unavoidable conflict of duties for the government. Therefore it is a dilema for those who have to make the decisions on behalf of the government. On one hand the government has a duty to protect the individual, an individual who in some cases may be threatening other individuals, and the threats may be unjustified or justified depending upon ones point of view. Furthermore an individual is not reducable to one of his/her social/politcal viewpoints or even all of them. We can not say that because someone is a bigot that their lives do not deserve some protection.
Free speech is clearly a public good. But it is not infinately priceless. A company or institution also has a stake in maintaining good will, at least among its regular customers if not an entire society.
Contracts between employers and employees are a first step in determining what recourse an employer should have over an employee who is damaging or disrupting the purpose of the firm or institution.
What SHOULD these contracts say about the rights and responsibilites of employers and employees?
It is the role of philosphers to decide. In these types of cases are the philosophers screwed no matter what rules or decisions they come up with? I suspect that the answer is probably yes.
Therefore, here are some lessons I would remind all 30 year old athletes to try to remember. Life is suffering, life is struggle. Every battle comes with some risks. Chose to fight those battles that you think are the most important.
I was going to write some things about jury nullification. But these types of cases do not seem to really be connected to that subject because the people effected are not going to be subject to the criminal justice system. Their cases may end up in a court. But these cases would be civil cases not criminal cases.
Then again maybe there is a connection. The connection is public safety. A person could say that attacking the integrity of homosexuals (or those who wish to kneel during the national anthem to protest to frequent unlawful police conduct) is an attack on the safety of the public. But those who are attacking the integrity of homosexuals (or national anthem kneelers) would be claiming that it actually homosexuality that is a threat to the safety of the public.
Since the maintence of public safety is a crucial government responsibility it is very difficult for the government not to get drawn in to the conflict. If it is middle of the 20th century Australia one side will have a clear advantage. If it is early 21st century Australia a different side might have a clear advantage.
This is how I propose that the problem of deciding who the threat to the public safety is. A government lawyer will accuse someone of a crime and the police will arrest the person. The person will be tried in a court proceeding with a hopefully random if not impartial jury of 13 members (with an alternate or 2) will take place. In the first part of the jury deliberations the jury has to decide whether or not the person actually said what he or she is accused of saying. I would think that in a case involving public statements that would be quite easy. In the second part of the case the jury gets to use its own sense of justice to determine whether or not the accused persons statement deserve protection. In the second part the goverment is going to have to win by a substantial majority to impose a punishment.
I was troubled for a long time trying to decide just exactly where to draw the line on a 13 member jury.
Finally I decided the best soulution was to allow for a sliding scale. A goverment would need at least 9 votes to be able to impose any punishment at all. But with each additional vote it could impose a harsher punishment up to maximum allowed by a central committee for criminal justice or a legislature.
Over time a record would build up as to what a lage majority of the residents of a district thought about which opinions were dangerous and which were justifiably contraversial. Prosecuting attorneys could then use their best judgement as to which cases to persue in their areas of responsiblity. That means that standards of conduct would probably be in many cases different in rural areas than in urban areas.
Of course a funny thing is that it is not the 19th century anymore. What happens in Las Vegas does not stay in Las Vegas anymore.
I previously had some concerns about the ability of the government to stack the jury pool in its favor.
I now think that there can be institutional fixes to solve that potential problem. An association of non government lawyers, and lawyers who work for the public defenders office could jointly oversee the selection of jury pool members to insure its fairness.
One idea about these trials that I would oppose is using the results from any one trial to establish a precedent. Each case should carry no further weight by itself as each one is unique.
How do you know he gets to keep his job? If you’re Prime Minister of the country and people still can’t spell your name right, is that a good sign for your chances of winning the election?
So many great questions like “What SHOULD these contracts say about the rights and responsibilites of employers and employees?”
But when I hear that word ‘should’, I get anxious.
What about this question, for the individualists….. ” But should a player ever be put in the situation where it is one or the other? (choosing between religion and his career).
I’d say yes for sure, why shouldn’t people have to put their money where their mouth is?
The question is from a non white male from his photo anyway and he identifies as a fallible Christian https://www.theguardian.com/sport/blog/2019/apr/18/israel-folau-lifestyle-choice-rugby-union-ugo-monye
I apply Hitchen’s Razor to religious claims, particularly those of form, “If you don’t do what we tell you to do then you will go to hell.”
Hitchen’s Razor: “What can be asserted without evidence can be dismissed without evidence.”
There is no empirical evidence for the claim of hell and eternal punishment. Therefore, it can be dismissed without evidence. Religion is prescriptive (deontological) ethics. It’s basically one bunch of people trying to tell another bunch of people what to do. The clear issue is power and control. People assert power and control for self-interested reasons. When some start talking about hell and punishment for others, the simplest (Occam’s Razor) explanation is that they really want to legitimize and implement hell and punishment for people in this, the real world. When punishing ideologies achieve power, this is what they have always done historically. This is the real evidence.
In like manner, we can see that mainstream economics is also a prescriptive belief system without empirical proofs. Mainstream economics is a secular religion. It asserts the existence of things which do not exist in the real world and cannot be proven to exist anywhere. For example, it asserts the existence of “utils” (never detected in nature), the equatability of all things through money (never detected in nature), the perfect market (never detected in society) and economic equilibrium (never detected in real and/or financial economies).
As a secular religion, mainstream economics also promises hell to those who do not follow its precepts. It ensures that this hell is delivered in this world as unemployment, inequality, homelessness, oppression, prison and aggressive invasion and destruction of those who reject the gospel of mainstream economics. (Think of “The Apocalypse of Settler Colonialism”* which was the praxis genesis of modern mainstream economics.) Any religion, secular or spiritual, which promises hell gains its greatest power from being able to deliver that hell right here on earth. This is the way all controlling religions, including mainstream economics as a controlling secular religion, work.
* “The Apocalypse of Settler Colonialism: The Roots of Slavery, White Supremacy, and Capitalism in 17th Century North America and the Caribbean” by Gerald Horne.
Aled, Israel Folau made the offending statement, not Scott Morrison. Your attempt to drag Scott Morrison into it is the illogical double standard of which you accuse others. Notwithstanding that, I hope the electorate shows Morrison the door.
‘illogical double standard’ Hugo? What is that? The opposite of the ‘logical double standard’?
Are you saying your double standard is logical?
You must be operating within in a new branch of logic.
I see now why Scott Morrisson is our PM. I am definitely done commenting here.
AleD “Scott Morisson gets to keep his job” There is a process for changing that, currently under way.
James, the possibility of damned souls being redeemed would have created a bridge of belief between Christianity, Hinduism, and Buddhism. It’s a pity this didn’t occur as it could have been a great source of spiritual comfort to Europeans as they murdered each other over whether or not a piece of bread really is Jesus of Nazareth or not.
Acknowledging your problem can be difficult, but it’s the first step towards dealing with it.
Yes of course J-D – self-insight therapy is much better than prayer for dealing with problems but is anxiety a problem that needs dealing with? I think that it is a functional response to the problems that have beset me.
Anyway I’ve come a long way through acknowledging that I have problems, it used to be that when I heard the word ‘should’ I was determined to show that I really shouldn’t.
But why has this thread turned into a sandpit and is that a problem that I should feel anxious about?
JQ said “if you say something acceptable to conservatives, it’s free speech, otherwise you can take your chances with the boss.”
Pretty much sums it up re Wilson, a gay man who must seem like the ultimate betrayer in some circles.
Ridd was shut down and out via power structures within academia and although poor methods and process his views have been inoculated against. Go science.
Folau is able to spread his bad virus to those who have had no inoculation, via pentecostal indoctrination. Many are therefore predisposed to activating the vicious virus of false beliefs and damnation of “the other”. No scientific provess, no contracts or inoculation except time and exposure which, if in a cult like church being given doses of reindoctrination every day / week coupled with shunning make falou a dangerous vector for those young and impressionable. Folau is a continual pox in society. Afraid he will burn in hell.
The climate is great here, and the company great. JQ’s new blog name – Heaven & Hell.
Go to Heaven for the climate, Hell for the company.
Folau and Wilson will both be down there.
Well, if we are all going to start free-associating and going into personal reveries here’s some music to assist;
I’ll try again. I meant to post this (if it works).
In an earlier comment I expressed my view that in some instances (perhaps I should add, in some rare and atypical instances) the expression by an employee of that employee’s personal views is sufficient justification for dismissal from employment. If Tim Wilson were prepared to avow that principle explicitly, it would be possible for the discussion to move on to topics such whether (and why or why not) there was sufficient justification for dismissal in the specific circumstances of the Scott McIntyre case and whether (and why or why not) there was sufficient justification for dismissal in the specific circumstances of the Israel Folau case. I don’t think there’s anything discreditable about holding that different cases should be decided differently on their specific facts. I think it’s symptomatic, and deserving of remark, when somebody (as, in this instance, Tim Wilson) purports to erect a universal principle which supposedly justifies dismissing any consideration of the specific facts.
Just looked up who Israel Folau is. He is apparently some sort of ball herder. And what he said about how certain classes of people (most people) will being tortured forever. The article I read said he is a Christian, but I was told Christianity is a loving religion so that can’t be correct. I suspect the journalist actually meant to write that he is a worshiper of Cthulu.
It seems to me a person should not be sacked for stating hideous things outside of work unless it interferes with their job. But as As JQ points out, Folau’s job isn’t just ball herding, it’s attracting sponsors and so saying that unbaptised puppies are going to burn in hell or whatever it was he stated on twitter is interfering with his job. This should only become a problem if it is stretched too far. If a biscuit packer at a biscuit packing factory tweets the same thing to 8 followers it could technically be seen as potentially bringing the biscuit packing company into disrepute, but I don’t think a reasonable person would see it that way.
It is interesting and says something significant about the dynamics of human behaviour the way this event has generated so much comment.
From the monograph that Ikon linked to some time ago; “The Autocatalytic Sprawl of Pseudorational Mastery(version 0.12) by Ulf Martin writes that “The kind of formations persons can think of depends on the society a person lives in, which can be identified by what Cornelius Castoriadis called its social imaginary significations (SIS).
So this is a social imaginary signification event, and the it’s gossip going on that creates the kind of formations we can think of. But surely it is just gossip?
We can gossip about Folau but not about Morrison because that would be political so nobody better make fun of our PM doing what definitely wasn’t a hitler salute at his church because if you do you have to make fun of Muslims. That’s the right wing political correctness.
“Gossip is intimately connected with the moral rules of a given society, and individuals gain or lose prestige in their group depending on how well they follow these rules. This formation of group opinion is something to be feared, particularly in small rural communities ”
Shame on me for posting evonomic stuff but here goes. I can handle it.
I see that Nick Gruen is part of this group and I really like the painting at the top of the page.
And here’s some more music to soothe the savage soul that needs saving.