Never for money, always for love… Authorising political content and the mysterious lack of anonymous right wing Twitter accounts

Bit of a secret–don’t tell anybody–but there’s an election coming up in 2022.  And so I found myself noodling with some questions of electoral law.  The one that has captured my imagination is the requirement to authorise political materials.

I want to present to you an idea that does not have a neat, tidy resolution.  Reasonable people can disagree about how they want their political system to handle this.  On one side of the scale, think about the mischief that arises from people being able to pump political material into the public square anonymously: people spinning political content to look apolitical or otherwise neutral.  I think most people want to be able to check the source of serious political claims.  On the other side of the scale, think about the extent to which a person should be required to give up their privacy just to participate in political activities.  We often think about the big ticket items here: what if people want changes to laws that negatively affect LGBT Australians without ‘outing’ themselves to their family?  But we don’t need to be nearly that dramatic: what if you just want to advocate for this or that policy without maniacs trying to get you sacked from your job?  Or what if you just want to run a blog about economics on the side without the Press trying to doxx you (the Greg Jericho case)?

That’s the problem in broad brushstrokes. Privacy is important and people and their families shouldn’t be ‘fair game’ just because they want to engage in democratic culture, but we also know that there’s a threshold at which people are producing a lot of very partisan, very political content and we want to be able to verify the source of the content.  From this broad sketch, we fill in the details about the problem and end up with a range of reasonable opinions…

No soldier in that gallant band hid half as well as he did… When offensiveness is the point

Jimmy Carr is no stranger to controversy or outrage.  The most recent regards a joke made on his Netflix special His Dark Materials in which the punchline was that the genocide of Romani was a ‘positive’ of the Holocaust.  Most reasonable people were offended by the joke because the joke was offensive.  Nothing in this argument is a defense of the joke.

I instead want to flip the debate a bit to look at an aspect of the ‘freedom of speech’ debate that doesn’t get a lot of attention: what happens when people are trying to be offensive?

But when you wish upon a dream life ain’t always what it seems… Of Pride Guernseys and Islamophobia

Being a Muslim in Australia must really suck.  No matter what you do–or don’t do–you’re always at risk of creating hot take content.  For the past week or so, Haneen Zreika’s decision not to wear a Pride Guernsey has been fodder for the chattering classes when.  People ‘just asking questions’ have stirred some pretty gross Islamophobia, particularly the idea that being Muslim is incompatible with upholding human rights (loosely understood) and liberal values (even more loosely understood).  In the backdrop of the discussion are also fairly borked intuitions about the new Religious Freedoms Bill and, it seems, even more hostility towards the idea that any concession should be made to religious beliefs.

We be the colours of the mad and the wicked… Are we becoming scared of protest?

Last year, I argued that Australia was developing a new standard for political protest: the ‘Theatre Kid Threshold‘.  If you rocked up to a political protest with a gallows that looked too good, you were no longer protesting but, instead, advocating violence.  I argued that this was a bad intuition, radically expanding what we understand to be a death threat and the apprehension of harm.  I also argued that–let’s be serious–what was driving a lot of the discussion was opposition to the message of the protest.  Which is fine and I agree with that intuition, but we might want to use other legal methods for achieving that end instead of inflating what counts as advocacy for violence.

I touched very lightly on the idea that the protest was a form of terrorism, an idea that gained some traction in the week surrounding that protest.  It’s an idea that has gained significantly more traction in the past week following the protests at Old Parliament House.  Perhaps more interesting from my perspective is the Othering of the protestors: right wing commentators have described the protesters as left wing; left wing commentators have described the protesters as right wing; there have been very disturbing denials of the Indigeneity of some of the protesters; there was one very incorrect use of the term ‘stochastic terrorism’ by an author who recently wrote a book about the alt-right.

A boring version of this blog post is me patiently working through the relevant law to explain why the protest at Old Parliament House wasn’t terrorism.  A slightly less boring version of this blog post is an argument that we should use ‘terrorism’ as a label of last resort and that contemporary popular uses of the term are missing the ‘terror’ element.

But I want to start 2022 with a blog post that really gets the blood pumping.  I’m going to sledge Sami Shah.

In a passion it broke, I pull the black from the grey… Skip @Atlantic_Ctr’s ‘A Descending Spiral’

John Johnson was a shy child.  He was doing well at school until his father lost his job and became a violent alcoholic, and then his mother died of tuberculosis, and then the local saw mill closed down, pushing the entire region into an economic depression.  As Johnson grew up, he made friends with the wrong kind of kid, and he self-medicated his shyness with drugs and petty thefts.  Then, one day, Johnson was walking along the road humming a jaunty tune, when he accidentally tripped over, tied up eight people, and shot them all in the back of the head.  He was sentenced to death.  The appellate court refused to mitigate the sentence, noting Johnson had previously been convicted of a string of aggravated sexual assaults and two other murders.

If the above paragraph convinces you that the death penalty is wrong and should be abolished, then you are going to love Marc Bookman’s A Descending Spiral.  Anecdote after grisly, unrelenting anecdote about absolutely horrible crimes motivated by the unexamined assumption that the stories show that the death penalty is wrong.  For literally everybody else in the world, this is a frustrating, irrational, and emotionally exhausting series of stories written in a ‘true crime podcast style’.

I was cautioned to surrender; this I could not do… When should allegations result in resignations?

Forget ICAC and the Register of Member’s Interests, for a moment.  Let us distract ourselves from questions about Gladys Berejiklian and Christian Porter.  The recurrently anachronistic King Arthur sits at his round table with knights whom he has appointed for their outstanding character, noble virtues, and exceptional integrity.  King Arthur himself feels that he can govern only if he maintains unimpeachable moral authority, and it is on this basis that he has been able to resist challenges from those who wish to claim the throne.

One day, a meeting of the Round Table is suddenly interrupted: a man bursts into the room and makes astounding allegations about Sir Lancelot.  Should Sir Lancelot resign his position?  Should King Arthur sack him?

Spreading rumors and lies and stories they made up… I’m an expert; here’s my Patreon

If you feel like NSW Government was negligent in its handling of the pandemic, there’s an expert to confirm your view.  If you feel like Victoria is too heavy-handed in its approach to the pandemic, there’s an expert to confirm your view.  Neither expert will point to any actual data or evidence, and they certainly won’t acknowledge that other viewpoints are rational or reasonable.  It’s a frictionless environment in which the experts proclaim their views and never, ever let anybody see how they formed their conclusion.

Why is it like this?  There were books to sell, there was attention to be farmed, and–in at least one case–there was a political career to launch.  We had a problem in the marketplace of ideas: everybody wanted to buy the diesel-guzzling, toxic-fumes emitting, turbo hot take generators and didn’t really care about the impact on the environment.  The marketplace wanted the ideas that were spicy and sensational; they didn’t want ideas that made them feel like they couldn’t bellyfeel their way out of the problem.

I want to shift the lens here a little bit.  Above, we could see the problem in terms of institutional media entities picking and choosing its experts based on their availability to comment, willingness to say sensational things, and the amount of audience engagement they encouraged.  I want to say–in the least defamatory way possible–that there were also individual incentives to behave like this: attention, book sales, political careers.

When we ease back from the institutional media entities and look at the concept of ‘expertise’ more broadly across different topics, I think we see something similar that has emerged over the last decade or so: market-selected expertise.

I’m not bored or unhappy, I’m still so strange and wild… Big Daddy State must keep us safe

On 9 November 2018, Hassan Khalif Shire Ali set fire to his vehicle in the middle of Bourke Street, Melbourne, and then stabbed three people.  Mr Ali was fatally shot by police shortly afterwards.

I think about this incident a lot.  Mr Ali was a Somalian-Australian, he had a young kid, and he was known by friends and relatives as having some severe mental health issues, as well as some substance abuse.  I remember being worried about the backlash that the event would have on the Somalian-Australian and Muslim-Australian communities.  The Premier of Victoria, Dan Andrews was on the front foot in declaring it a terrorist event.

But what really scared me was the surprising overlap in rhetoric between mainstream Coalition and ALP voters: why had this been permitted to happen?  Why hadn’t ASIO, AFP, and VicPol stopped this from happening?

I think about it a lot.  Since starting my PhD to research political aspects of national security law, I’ll think about it every few days or so.  Public debate was guided by entirely the wrong questions.  This incident was a failure of Australia’s national security system because it hadn’t done more to police Mr Ali.

Today, the number of new confirmed cases of COVID in NSW is 830.  There were 65 new cases confirmed in Victoria, and 19 in the ACT.  Public debate is following similar contours: why had this been permitted to happen?  Why hadn’t the NSW Government done more, earlier, to stop this from happening?

Bendable figures with a fresh new pack of lies… More on standards of evidence and Christian Porter

Juror no. 77: You’d have to convince me he was innocent rather than guilty.

Let’s walk through this one carefully and slowly.  In a recent post, I talked about how we were not committed to criminal standards of evidence when we talk about public accountability.  Since that time, the Attorney-General, Christian Porter, has told the public that he is the subject of the complaint.  He denies the allegation and has said that he would not step down.

Unfortunately, he said a few other things.

If I stand down from my position as Attorney-General because of an allegation about something that simply did not happen, then any person in Australia can lose their career, their job, their life’s work, based on nothing more than an accusation that appears in print.

If that happens, anyone in public life is able to be removed simply by the printing of an allegation.

Every child we raise can have their lives destroyed by online reporting of accusations alone.

My guess is that if I were to resign and that set a new standard, there wouldn’t be much need for an Attorney-General anyway, because there would be no rule of law left to protect in this country.

This is not true, but social media chatter is very confused about what’s being discussed here and how we resolve this kind of problem.

He packed his suitcase and kissed his kids goodbye… Some facts about recent defamation cases

New year, new batch of defamation cases!

Two recent cases have had journalists and media professionals on Twitter all abuzz.  Media companies continue to lobby for changes to defamation law in the same way that vehicle manufacturers continue to lobby against emission standards.  Media organisations wield incredible and largely unchecked powers in Australia.

Until 2005, there was significant variation between Australian jurisdictions in the law of defamation, including whether or not truth alone was a defence.  Some jurisdictions required news organisations to also show something like ‘public interest’ or ‘public benefit’ when using a truth defence (called ‘justification’).

In 2005, it was decided to lower the standard across Australia to ‘truth alone’: if you could demonstrate that what you were saying was substantially true, you had a defence in defamation law.  The quid pro quo of this lower standard was that we were going to get a legislated tort of privacy: if media companies invaded your privacy, they would have to demonstrate a public interest in doing so.

Having obtained the lower standard in defamation law, media companies then lobbied against the privacy tort…