Hold it now and watch the hoodwink… Margaret Simons on Freedom of Speech

The more I contemplate the media’s articles about the Andrew Bolt court case, the more I realise that it’s a case of the foxes running the chicken coop.  I’m rather shocked that I found myself surprised that so many media personalities would uncritically trumpet the right of the media to publish whatever it wants without regard for its social impact or its affect on individuals.  Other blogs seem unwilling to curtail speech unless violence is incited.

In Crikey, Margaret Simons writes why we have to hope that Andrew Bolt wins his case.  A careful analysis of her article shows that the first pronoun in the title refers to her and her media chums.  It’s certainly not an inclusive ‘we’.

This case is not about whether or not Andrew Bolt is a nice person or a good columnist. It is about the limits of freedom of speech. [Source: Margaret Simons, ‘Why we have to hope Andrew Bolt wins his case’, Crikey]

Is the case about the freedom of speech?  On the face of it, it’s not.  The case is about whether people are entitled to live in a society which does not attack them on grounds of race.  A secondary question to this is whether media personalities have a right to publish material attacking members of society on the grounds of their race.  Media commentators seem unwilling to shift away from the question of free speech.  Free speech first, everything else second because publishing offensive material sells advertising space.  The inability to create inflammatory and controversial content strikes at the heart of their business model.

But that’s as nothing compared to the strangest sentence of her article:

If that precedent is to the effect that we must not offend people when talking about race, then all those involve [sic] in publishing and reading will rue the day [Ibid.]

Rue the day!  Verily, if they are unable to make your ethnicity a topic of conversation, there will be gnashing of teeth in the publishing houses.  Editors will wear sackcloth and rub ashes into their hair.

Then she twists herself in knots trying to show how the racial discrimination law is somehow different to legitimate infringements of the most basic human right: the right to publish objectionable nonsense:

Of course, freedom of speech is not absolute, and there are limits. For example, we have the laws of defamation,and censorship, and there are other laws that deal with things such as incitement to violence.

But the law of defamation does not prevent publication. It allows those who have been defamed to seek compensation. [Ibid.]

This is nothing short of pencils-up-nostrils-shouting-‘Wibble’-crazy.  In an extremely simplified nutshell, defamation law works as a deterrent against damaging reputations.  It’s supposed to prevent publication under penalty of getting sued by the people you would otherwise defame.  Does Simons think that the law was developed like a royalties system?  Oh, you can print these outrageous lies but you’ll have to pay the person you defamed for the right to do so.

Further, you can seek an injunction to prevent defamatory material from being published.  So, yeah.  She’s flat out incorrect.

Simons argues for something like a ‘pub’ test.  While Bolt might be obnoxious, ‘[y]ou’ll find the same things said in most pubs.’

We should worry if we are going to start prohibiting people from publishing views that, while we strongly disagree with them, are common in the wider society.  [Ibid.]

I’m not sure when Simons was last in a pub.  The last time I was in a pub,  I was treated to such excellent opinions as:

  • Why we ought to shoot ‘Abbos’.
  • Why we ought to shoot asylum seekers.
  • Why Jews are conspiring against the rest of the world.

These sorts of opinions do not have a place in civilised society.  Simons seems to think that these ignorant, beer-fuelled slurs should be permitted in our mainstream media just because they’re not uncommon in our drinking dens.  It’s not difficult to take the evidence Simons cites and make an entirely different argument: ‘You’ll find the same things said in most pubs.  We should worry if we are going to start publishing views which are also repugnant in our nation’s pubs.’  While they might be uttered in pubs, they shouldn’t be.  There’s no place for those views anywhere, not even in pubs.

Then there’s some gibberish about how if we hold News Ltd to a ‘higher standard’ then the government might come after you, dear bloggers.  And you don’t want the King of England coming in here and pushing you around, do you?

If you use defamation law as a vague measure, you’d know that if you’re an influential, substantial somebody, you’re more likely to have people sue you for racial vilification.  Defamation law applies to everybody at the moment, but I can slag off lots of people and nobody’d give a toss because I’m not worth suing.  Similarly, if I publish terrible things about how the Swedish Ambassador to Australia isn’t really Swedish (but just claiming it for political gain), I’m pretty sure they aren’t going to get their lawyers on to me.  Technically, they could but we live in Reality Land where the effort isn’t worth the gain.  The racial vilification law scares the media because people will sue it more than they sue other kinds of people.  The same is true of defamation, weirdly enough.

So if they can beef up this ‘OMG, racial vilification law is ridiculous and a threat to your freedom of speech’, they get the benefit.  It’s another example of the media wanting unfettered rights without having to accept responsibility.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

5 thoughts on “Hold it now and watch the hoodwink… Margaret Simons on Freedom of Speech”

  1. thanks for the breakdown. journalists and media proprietors on the whole are protecting their own in their reporting of this case. it is disgraceful. your breakdown helps demystify what Simons @ Crikey is really saying.

  2. Andrew Bolt is a racist. When do this so called media mob get it right – people like Margaret and the rest of them need to be in a different business they are a disgrace to this country. Hang on they dont belong to this country or this lifetime – Bolt and his cohorts belong with Hilter???????

  3. well said I’ll buy that one thanks ;
    and add the quip if I may that ‘sometimes good things are used for bad ends’ like human rights are abused in Iraq so lets go to war and strip away human rights wholesale in the name of championing them!
    freedom of speech is a ‘good’ invented to balance the censorial fascist state ‘bad’ So when we are talking about land rights in Australia it’s an attempt to cut through a hegemonic blanket of silence and ignorance. This woeful condition takes some effort to maintain with a snow job that Andrew Bolt seems to be on a mission to obscure the truth with character assination ho hum here we go again. Also @pub jive;- there are now two tiers press and web the former does need constitutional constraint the latter is a amorphous so how that interacts needs vigilance, (beyond courts) …forgive my excess verbage folks

  4. So how do you feel about wikileaks–given your pro-censorship protectionist position I’m assuming you must believe that the state has the right to censor that as well?

    The history of censorship in Australia has tended towards censoring the left and minorities so take care what you wish for in the name of shouting down reactionary columnists.

    1. Ok, so you’re responding to a self-described conservative not by challenging his arguments, but by noting that people politically opposed to him are traditionally those silenced? Clever.

      I’ll let him say his own piece on Wikileaks, but (as a ‘left’-ish person) I certainly don’t think that those leaks were entirely unproblematic – Wikileaks should, at the very least, have spent more time redacting names and personal information from the materials it released, especially since it already spends some time doing that.

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