Freedom and the Commissioner

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[1], 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

  1. 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.

  2. 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?

  3. 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.

  4. Scott Morisson gets to keep his job

    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?

  5. 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

  6. 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.

  7. 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.

  8. ‘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.

  9. 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.

  10. But when I hear that word ‘should’, I get anxious.

    Acknowledging your problem can be difficult, but it’s the first step towards dealing with it.

  11. 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?

  12. 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.
    Mark Twain

    Folau and Wilson will both be down there.

  13. Well, if we are all going to start free-associating and going into personal reveries here’s some music to assist;

  14. 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.

    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.

  15. 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.

  16. 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.

    https://evonomics.com/ayn-rand-vs-anthropology/

    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.

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