Are Bills of Rights immoral? A reply to @ashhirsch #auspol #auslaw

In response to an article I wrote arguing that rights legislation was ineffective and cumbersome, Asher Hirsch responded with a fairly common assertion:


The best response to this assertion was from one of the drafters of the Australian Constitution, Alexander Cockburn:

Why should these words be inserted? They would be a reflection on our civilization. Have any of the colonies of Australia ever attempted to deprive any person of life, liberty, or property without due process of law? I repeat that the insertion of these words would be a reflection on our civilization. People would say-“Pretty things these states of Australia; they have to be prevented by a provision in the Constitution from doing the grossest injustice.” [Source]

It’s sometimes been said that Australia has a ‘she’ll be right‘ attitude towards legislated rights.  In a sense, that’s correct.  For the most part, we expect Parliament to share our moral intuitions and not to pass laws which are repugnant to those intuitions.

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Quick Post: On the Freeness of Speech (reply to @citation_needed) #auspol #auslaw

Over on AusOpinion, I’ve argued that two recent court cases have breathed life into the entitled whining of freedom of speech advocates.

But — again — we are only hearing from one side of the debate, the side which thinks it’s intuitively obvious that Australia’s legal system failed to protect Banerji and the Occupy protesters.  The argument is a simple one: ‘Look at these people with whom you appear to agree!  If only we had a bill of rights, people with whom you agree would have been protected!’  It’s a narrow and shallow debate that overlooks the cost of free speech. [Source]

To show that the intuition is flawed, I’ve given several examples of how a constitutionally protected freedom of speech would adversely affect various progressive causes.  The point being, we need advocates to start engaging seriously in the debate with something better than absolutist slogans like ‘Free speech is the cornerstone of democracy’ and ‘The rights of all public servants are at stake here’.

Over on Twitter, M Nash (@citation_needed) has responded:

[tweet] [tweet]

On the one hand, this misses the point.  The point of my examples was not to demonstrate definitively that freedom of speech protections are a waste of time.  The point is to counter the intuition-pumps arising from the two court cases.

On the other hand, M Nash’s response is exactly the one for which I’m explicitly asking in the post:

This isn’t a debate between the hip cool progressives who love freedom and the crusty old conservatives who hate minority rights.  It is isn’t even a debate.  It’s just entitled whinging from people who opportunistically think that they would benefit from a constitutional protection of free speech. [Source]

If you think that US-style protections don’t work, put some options on the table and let’s nut them out.  Given that the mainstream media only discusses rights in terms of Bills or Charters, this would be an extremely welcome and productive development of the rights debate.

But don’t for a minute think that it’s an easy discussion.

Prima: ‘These court cases prove that we need better protections for the cornerstone of democracy!’

Secunda: ‘But the protections that you’re advocating would have major negative consequences.  Here are some examples.’

Prima: ‘None of those examples hold if you just ignore the protection mechanism that I’ve been advocating.’

Secunda: ‘So what protection mechanism do you have in mind?’

Prima: ‘We… We… We could have a whole host of exceptions to the freedom of speech.  We could have a constitutional protection for the freedom of speech, but allow the State to infringe it for matters of national security, protection of human health, for the maintenance of an impartial public service, and for the purposes of ratifying treaties.  Oh, or we could just limit the applicability of the protection.  We could have a constitutional protection just and only just for true political communication that’s in the public interest!’

Secunda: ‘Sure.  But these seem like very limited rights, and they look like they could be easily abused…’

And so on and so forth.  But this is exactly the debate that we should be having.  When advocates start braying for constitutional protections, we should hold them to account and make them defend their views.  Otherwise, it will always remain an entitled whinge-fest.


I find it’s all our waves and raves that makes the days go on this way… Anti-blasphemy laws are good for you #atheism #auspol

We need to get something out of the way: Australia is not Syria.

I know.  You’re probably shocked at this revelation.  You were probably sitting at work in your office, going slightly grey under the fluorescent lights, contemplating going for another coffee, and thinking: ‘Shit, I can’t work it out.  Am I in Australia or am I in Syria?  They’re so alike.’

No.  Australia is not Syria.  Australia is not even close to being Syria.  No policy implementation exists which could increase the risk of Australia being Syria.  Australia is not Syria.

Now that we’ve got that controversial point out of the way, we can talk about freedom of speech.

The language we use to describe our rights often reveals our biases and assumptions.  ‘Freedom of speech’.  It sounds so noble but it hides a lot of implications.  ‘Freedom of speech, even if that means offending.’  ‘Freedom of speech, even if that means a group of people don’t feel welcome in society.’  ‘Freedom of speech, even if that means putting people in danger.’

For example, when Adam Brereton writes:

Make no mistake, Wilders has nothing new or interesting to say on the topic of Islam. But in an ideal world we would welcome him to Australia with open arms so he can be torn to shreds in the arena of public debate.

What he’s really saying is that tearing Wilders to shreds in the parry and thrust of public debate is more important than the right of Australian Muslims to go about their lives here in Australia unmolested by racist cranks.  A lot of our debate about freedom of speech is really about normalising or silencing the problem of externalisation: somebody else pays the price of our pursuit of particular rights.  As I said in a recent post, nobody can say anything — short of making absurd death threats or shocking me with praise of Osama bin Laden — which will upset me in the same way I can upset somebody who’s religious, or homosexual, or an ethnic minority, or any other marginalised group.

Most people accept that defamation is a legitimate restriction on the freedom of speech.  You can’t use your freedom to damage the reputation of somebody else.  If ever there were a self-serving case of special pleading, I’ve yet to come across it.  ‘Oh, protecting the interests of wealthy people who can afford to use the legal system is a legitimate restriction of free expression… but protecting the interest of marginalised people who are excluded from easy access to the legal system?  No.  That’s making us much more like Syria.’

Despite being an atheist, it’s no secret that I’m pro-Islam.  I think it’s a great religion, as far as religions go.  It preserved the works of Aristotle, after all.  I’m also a staunch pluralist (rather than secularist) and think it’s extremely important for the promotion of conservative values to make Australia as inclusive as possible.

But perhaps you don’t share my enthusiasm for inclusiveness.  Perhaps you’re really attached to the idea that freedom of speech is not just an adolescent whinge.

I still think you should support anti-blasphemy laws.

On the one hand, you have the indignation and outrage of a large group of people who feel marginalised and excluded from mainstream public conversation.  They are repeatedly told: ‘No, you don’t belong here.  Your anger is illegitimate.  Your outrage shows how uncivilised and backwards you are.’  In response, they look to the organs of state to protect them.  They want some legislated protection from the excesses of ‘freedom of speech’.  They want anti-blasphemy laws.

To define something is to limit it.  So an anti-blasphemy law not only restricts freedom of speech in some way, it also restricts the informed conversation about blasphemy.  It draws a circle around it.

Imagine if we had a law which said: ‘It is unlawful to perform an act in public which would, in the view of a reasonable person, insult, offend, ridicule, or humiliate a person or a group of people based on their religious beliefs (including atheism as a religious belief because it totally is)… except where the act is a good faith engagement in a scientific debate, or artistic production, or public debate, &c., &c.’

In one swift move, you have protected the most important aspects of freedom of speech — the right to have an open, honest, frank, and fearless debate — from the increasingly persuasive case of various minorities that they’re victimised in society by the assumptive pursuit of freedom of speech.

Thus, everybody should be in support of anti-blasphemy laws.  They make a more inclusive society and they uphold the importance of free speech.

Tables, chairs, and oaken chests would have suited Jesus best… In rational defence of irrational violence

We’re now at the stage in the public debate where politicians are condemning the exercise of ‘free speech’ by Muslim protesters which condemned the exercise of ‘free speech’ by some shady figure who made a video insulting Islam.  It’s enough to make you dizzy.   No doubt we shall soon see Bernard Keane write an ever so urbane article condemning the politicians who condemned the protesters who condemned the shady figure who made the video.  That’s what our public debate is like: send in more trains.

We can — and should — try to grapple with the complexities of the discussion because it reveals a lot about our intuitions regarding freedom of speech and violence.  Public discussions tend to adopt a ‘Boo – Hooray!’ model.  Tax?  Boo!  Hospitals?  Hooray!  Supertrawlers?  Boo/Hooray!

Freedom of speech?  Hooray!  Violence?  Boo!

The problem with the model is that it stops us from questioning the assumptions behind our responses.  When we don’t question those assumptions, it’s difficult to have any sort of meaningful conversation: unless people share the same assumptions, you might as well be talking a different language.

I was in a discussion about the riots which suffered this exact problem.  I am not a fan of the ‘freedom of speech’ (I think it’s an inglorious shield for ratbags).  Once a nation has reached a certain level of development, I think the ‘freedom of speech’ right should be seriously curtailed in favour of inclusiveness.  This is because my intuitions about violence do not stop at mere physical violence, which is what most people get worked up about, but extend through to social kinds of violence: hate speech, insult, and ridicule (when they reach a particular threshold).  If we’re going to be serious about being a society founded on consent, then we have to start thinking about whether people consent to us marginalising and humiliating them.

Of course, if you’re a cowboy of the electronic frontier, that’s going to sound unintelligible: violence is a physical act, nobody should care about hurt feelings, sticks and stones cause broken bones.  Harden up!  Here’s a cup of concrete.  To me, this is the same kind of reasoning which fuels the ‘Mental illness isn’t really real like a physical illness’ prejudice.  When somebody harks on about the freedom of speech and how important it is, I can see nothing but adolescent whining.  Just as they can’t understand my intuitions, I struggle to understand their assertions.

So let’s start right back at the start.  There is a major ground rule to discussing these sorts of questions: charity.  We should assume that people are, on the whole, intelligent, reasonable, and don’t do things for ludicrous reasons.  People don’t go a rampages because of videos, cartoons, or other frivolities.  The focus on these aspects of the story makes it easy to trivialise the viewpoints of people with whom we disagree.

This charity gives us a derived position: if we’re being charitable and consider people capable of being intelligent, reasonable, and serious, we have to hold them to the highest possible moral standards.  We can’t trivialise people’s positions with special pleading.

Already these two points shift us away from talking about the video (which is a sideshow distraction in the conversation, although I’ll discuss part of it in the bottom section) and force us to discuss why they would riot and whether their violent reaction is justifiable.

Why they would riot is a massive topic, mired in questions about whether countries outside of the Anglosphere really have the same social power as the rest of the world.    To me, this riot and reaction seems like the expression of an exhausted and frustrated people cynically egged on by a few influential shit-stirrers.

But is there anything inherently wrong about violent reactions?

Let’s use a film example.  In A Time to Kill, Samuel L Jackson’s daughter is raped and killed by two white guys.  He believes that the justice system is racist and that he would be denied access to a just outcome.  Being unable to avail himself of legal remedies, he decides to kill the guys who killed his daughter.

The film was criticised for encouraging the audience to empathise with vigilantism.  While we can understand that SLJ’s actions might have been unlawful or illegal, it becomes less clear cut that his actions were immoral, unless you were taking an absolutist stand against violence.

Let’s try a real world example.  Feeling that they were denied access to legal remedies, asylum seekers detained on Christmas Island rioted and set fire to the place.  Writing in ABC’s The Drum, Greg Barnes wrote:

It is bad enough that such people have their liberty curtailed by being locked up for long periods, but it is even more egregious that they can be set upon with rubber bullets, water canons or tear gas.

The message from Barnes and others was that it wasn’t wrong of the asylum seekers to riot and destroy property: it was the fault of the system.  The riot was justifiable.

The two examples frame the conversation not in terms of ‘Is violence absolutely wrong?’ but in terms of ‘Is violence a justified response to a particular situation?’  Sure, the absolutist is always going to say no, but their reasons will need to keep shifting in order to keep up.  In the first answer, they would need to argue that SLJ just needed to endure the injustice of having his daughter raped and murdered.  If the legal system couldn’t help him, then he was out of options.  In the second answer, they would need to argue that the asylum seekers should have found other avenues to complain about their situation, regardless of their possibility of success.

But another, moderate point is coming across: violence is okay if other remedies are not available.  If we’re okay with that idea, we can apply it to the Muslim rioters case.

We’ve already said that this wasn’t about the video.  We are assuming that people have good reasons to engage in unnaturally extreme acts.  So the riot is less about the video and more about the perception that Anglophone society is openly hostile to Islam.  What expression of frustration and anger is available to a large number of people with limited ability to engage in a reasonable discussion about their concerns?

I don’t see any other avenues for the expression of their rage.  Why should they have to ignore their anger when they feel targeted by the most powerful nations on Earth?  If I were in a position where my cultural values were marginalised and ridiculed (which, because I’m white and right wing, will never, ever happen), I would get pissed off and join a demonstration protesting against it.

We could have started from a different perspective and looked at the reasons why people are so ferociously anti-protest, but I find that avenue a bit limited.  I run straight into the problem of defining violence in a way which everybody agrees.  If we take the hardline, anti-violence streak, we would condemn the video which started it and argue that authorities should prosecute whoever is behind it.  Weirdly enough, that’s the message from the protesters as well…

If I adopt the definitions of my interlocutors (restricting it to physical violence alone… including against property?), then I end up in a world of special pleading.  Why don’t we see violent responses as valid ones?  Because violence is bad.  Why is violence bad?  Because it is.  Why is it worse than marginalising a group of people to the extent that they don’t feel they can participate equally and fully in society?  Because violence is bad.

The motives behind invalidating violence as a response seems to be because it makes us uncomfortable in our prosaic little worlds where we don’t actually care about all that much.  Nobody gets mad.   When life hands us lemons, we don’t get our engineers to find a way to make an exploding lemon.  So when a group of people passionately consider something important to them, I am in a safe position to attack that thing.  There is literally nothing that that group could do to me which would make me as upset, embarrassed, frustrated, and victimised as I could make them.  The only response they’ve got is one which threatens me physically comparably to how I threatened them socially.

From my perspective, that’s what the ‘pacifist’ response — the criticism of protesting, the damnation of rioting — has been all about.  It’s reinforcing the privileged view that, if anybody else in the world wants to compete with us, they have to do it on our terms and in our way.  If they don’t respond in a way which makes us feel safe and non-threatened, their response is illegitimate and should be ridiculed.

Maybe I’m incorrect when I say there’s no way for them to compete.  There might be one way they could compete: nothing upsets a group of white people more than the spectre of violent dark-skinned people.  The sheer hypocrisy of people telling the Muslim world to ‘get over’ the video who then got bent all out of shape at a few ridiculous signs at the rally was breathtaking.  I’ve seen people wear shirts with things far more offensive than ‘Behead all those who insult the prophet’.  The responses to those signs ranged from outrage to disgust: the very same reactions that people had to watching the video.

Australian Muslims have nothing for which to apologise after Sydney’s demonstration.  There are always a few nuts in the crowd who are always eager for a scuffle with police.  It’s hardly the fault of the majority of the protesters.

Muslims worldwide have very little for which to apologise in general after the video saga.  It’s likely that the murders were opportunistic rather than related to the expression of anger and frustration expressed by most at the riot.

Understanding violence as language is more important than just blanket condemnation.  If we want to live in a world with less violence, we should put more effort into making people feel included and capable of expressing themselves on equal ground.  For that to work, we have to curtail freedom of speech where it is socially violent.

The Super Additional Extra Section About The Video

Discussing human rights is a difficult past-time.  I’m sceptical about the human rights enterprise, so it’s easy for me to jeer from the sidelines.  For all my jeering, I do appreciate how difficult it is to do.  Human rights law is a curious beast almost entirely divorced from questions about the ontology of law.  If anything, it’s extremely positivistic: human rights only exist insofar as they are enshrined in some particular piece of legislation or legal framework.

People have discussed whether there is a mechanism within human rights frameworks to have the video in question censored.  The discussion comes to abrupt end given the United States’ partial ratification of human rights instruments: they specifically stated that any instrument they ratified would be subject to compliance with domestic law about freedom of speech (first amendment rights).

Very few people have discussed whether the video would have been protected under Australian laws.

I’m sure regular readers of my blog are sick of me talking about section 18C and 18D of the Racial Discrimination Act.  I love the Act.  I would have its babies.

18C says:

 (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.

There aren’t too many cases involving this section of the Racial Discrimination Act.  It’s one of the unfortunate aspects of the Act: people don’t feel they can appeal to it without seeming like a killjoy minority.  It’s one thing to have the right to complain; it’s another to feel confident enough to use the complaint mechanisms.

Under my reading, the video (a trailer still counts as a video) would be a breach of 18C(1).  It was reasonably likely to insult a group of people (given the content and the way it was overdubbed, it is evident to a reasonable person —  of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal — that the video was designed to insult Muslims).

18C(b) is trickier.  Race is not biologically determined but socially constructed.  This was noted in the Eatock v Bolt decision regarding the difficulty of defining ‘Aboriginal’.  If you had a particularly ambitious lawyer, you could try to argue that being a particular kind of Muslim was an essential part of your ethnic identity.  For example, the HREOC website gives an interesting example of racial discrimination:

For example, it may be indirect racial discrimination if a company says that employees must not wear hats or other headwear at work, as this is likely to have an unfair effect on people from some racial/ethnic backgrounds. [Source]

I can only think of religious reasons to wear particular headwear…

The counterargument would be that the RDA is explicitly a piece of legislation to pass the International Convention on the Elimination of All Forms of Racial Discrimination (section 7).  When ICERD was passed, it was a major point that religion was not included.  As such, it is arguable that RDA would not cover religious discrimination.

Imagine that a court finds that it does satisfy 18C(b), we then look to 18D to see if the video is exempt from 18C.

 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.

The maker of the video would have to demonstrate that the trailer was made reasonably and in good faith.  Given the clouds of deception around the thing, I doubt they’d be able to pull it off.  If they did manage to pull it off, it would fall under 18Ca as an artistic work.  It’s difficult to imagine that they’d be able to argue that it was a good faith and reasonable artistic work when it is so obviously an attempt to upset and insult a group’s religious beliefs.

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.

Good fights about big things… Freedom of speech is a cloak for ratbags

Andrew Bolt is getting sued by a group of white-skinned Aborigines.

Chris Berg from the IPA thinks this is a terrible thing.

John Izzard from the Quadrant thinks this is a terrible thing.

Luke Wallage from some PR firm thinks this is a terrible thing.

Chris Merritt from The Australian thinks this is a terrible thing (bemoaning the importance of public debate six pages after dedicating an entire page and a quarter of the front page to the message that Bob Brown should ‘take[] action to stop [the watermelon faction of the Greens] from promoting [trade sanctions against Israel].’  Greg Sheridan even says they’re ‘very close to being outright anti-Semitic’).

And just to show that it isn’t just one side of politics: Jonathon Holmes from Media Watch thinks this is a terrible thing.

Mind you, Bolt doesn’t mind making veiled threats to silence people who mock him.  I guess freedom of speech is only important when you’re the one who’s making the speeches.  But let us judge Bolt on what he says and not on what he does.

As we all know, I’m very conservative.  I’m so conservative that I wonder what Robert Menzies would think of today’s crop of ‘conservatives’.  I’m so conservative that I — like the Sainted Bob Menzies himself — wonder if laissez-faire freedom of speech is the absolute right that so many white males in the media seem to think that it is.

Don’t get me wrong.  I’m not a fan of repressive censorship, but it’s a long stretch to go from ‘Hey, certain things shouldn’t be allowed in the public arena’ to ‘THIS IS JUST LIKE NAZI GERMANY’.  There’s a grey area in the middle and, somewhere in that murk, I think the line between appropriate speech and inappropriate speech lives.

For example, I think the views of David Irving live on the other side of that line.  I don’t think that the Jewish community in Australia (of which I’m not a member) should have to live in a society in which allows people to advocate Holocaust denial.  It is grossly offensive, ignorant, and attracts nutcases like flies.  If it became profitable for shock jocks to advocate that the Holocaust did not happen, you can bet your back teeth that they’d do it.  We, as a society, have a legitimate interest in preventing that from happening.

Along the same kind of reasoning, I do not believe that people should have to live in a society which allows people to challenge their legitimate ethnicity.  That (appears) to be what happened in the Bolt case and it ought to be forbidden.  If it causes newspapers to doublethink printing such obscenities, causing self-censorship (as Merritt believes that it will), then all the better.

In each of the cases articles above, there is an unchallenged assumption that the writers’ right to say whatever they like about whomever they like is sacrosanct.  There’s barely a mention of the alternative point of view in the media because it does not even occur to them (old white males all) that there could be something more important than their right to say what they like.  It’s almost shocking that they cannot picture themselves in the position of the litigants.  Their opinions are awarded absolutely no consideration.

Holmes article at least provides some sort of reason for why it’s so terrible: he hints at the idea it’s because the harm can’t be quantified.  It’s an argument I’ve heard from my friends as well, and it seems to run like this:

1. Being offended is subjective.

2. People should harden up and stop being princesses.

3. [Insert some sort of entailment premiss]

C. There should not be a law which prevents people from saying things which are hurtful or upsetting.

The underlying assumption is that emotional distress is not worthy of consideration, unlike physical distress.  If somebody punches me, I can sue them.  If somebody offends me, I can not.

Some of my friends go even further and claim that defamation law is an unfair infringement on their right to spout rubbish about other people.  The underlying idea behind defamation law is that it is possible to harm a person’s reputation in a way which is actionable.  It is interesting that the Merritt article links defamation to the case against Bolt (but doesn’t bother to analyse the link).

Where the argument falls down is that emotional distress is worthy of legal consideration.  The next person who suggests otherwise will have to suffer the slings and arrows of my torts textbook.  The fun part about getting compensation for emotional distress is that the media likes to whinge about it as well (‘overcompensation’).

There are no good reasons why Bolt should be allowed to say what he did beyond the boohooery of ratbags who think that their ‘rights’ outweigh their responsibility to maintain an inclusive, civilised polity.

For my money, I hope Australian Muslims sue him next.