Sun in the sky, you know how I feel… Why @MargaretSimons is wrong about RDA 18C #auspol

In ABC’s The Drum yesterday, Margaret Simons continues to make very strange comments about section 18C of the Racial Discrimination Act.  Admittedly, Simons is known for making strange comments in this space, having once championed a ‘Pub Test’ for newspaper content: if you can hear it opined in a pub, you should be able to read it on the front page of a newspaper.

I even agree with Abbott about the obnoxious nature of Section 18C of the Racial Discrimination Act, which was used against an Andrew Bolt column. The Bolt piece was a nasty and sloppy piece of commentary, but it should not have been illegal [sic]. [Source: Simons, ‘Media regulation: Abbott speaks sense and nonsense‘, ABC The Drum]

Simons — along with people like Jonathan Holmes, Chris Berg, the IPA trolls, and Tony Abbott — are outraged at the idea of a ‘hurt feelings’ test.  18C makes it unlawful to be frank and fearless with your freedom of speech which, of course, must be identical to the freedom to offend.  The assumption is that 18C of the Racial Discrimination Act is a way for people with thin skins and hypersensitivity to silence people who make them cry.

Utter, utter nonsense.

Let’s go back to the Act itself:

(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.

(2)  For the purposes of subsection (1), an act is taken not to be done in private if it:

(a)  causes words, sounds, images or writing to be communicated to the public; or

         (b)  is done in a public place; or

(c)  is done in the sight or hearing of people who are in a public place.

(3)  In this section:

“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.  [Source: Racial Discrimination Act 1975 (Cth) s18C]

So there are two prongs to an unlawful act under 18C.  First, you perform an act in public which a reasonable person would think is likely to upset a person or a group.  Second, the act is motivated by the ‘victim’s’ race or ethnicity, &c.

It’s not just a hurt feelings test.  It’s a ‘don’t be a jerk’ test.  Unlawful acts are only those which are reasonably likely to upset somebody and which are motivated by race/ethnicity.

But that’s not even the full story.  Check out 18D:

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. [Source: ibid. s18D]

Where 18C outlines what an unlawful act would be, 18D provides a defence for upsetting a person (or group of people) based on the colour of their skin.  18C and 18D together say, ‘People shouldn’t feel humiliated for the colour of their skin and, if somebody does humiliate them based on the colour of their skin, they should have a really good reason for doing so.’

 

There’s an important underlying philosophy to 18C and 18D.  We are supposed to live in something like a ‘Republic of Reasons’.  In order for me to do some harm to you, I need to have your permission or a really good reason to do it.  For our social order to function, we rely on a problematic notion of consent to inform the extent to which one person interacts with another.  This is what’s being reflected in 18C and 18D.  People of all skin colours should be able to enjoy the fruits of civilisation without being subject to ridicule and humiliation.  And if they are ridiculed or humiliated, there better be a damn good reason for it.

The real question here is not whether 18C goes too far.  The question is whether it goes far enough.

Simons is correct when she says Abbott makes sense in places, she just incorrectly identifies those places.  As I’m an atheist, it will probably shock readers to know which part I think he gets correct:

If it’s all right for David Marr to upset conservative Christians, why is it not all right for Bolt to upset activist Aborigines?  [Source: Tony Abbott ‘The job of government is to foster free speech, not to suppress it‘ The Australian]

The question (if questions can have a truth-value) is correct.  Why is it all right for David Marr to upset conservative Christians?  If we apply the same reasoning from before (about being in a Republic of Reasons) then there should be some good reason for Marr to ridicule or humiliate a section of society based on their religious beliefs.  Indeed, that goes for a lot of the pop-atheist crowd who seem to think they’ve got some God-given right to ridicule and humiliate Christians just because they have different beliefs.

You could argue that people choose their race but don’t choose their religion.  Not only is this naive (most people don’t choose their religion) but it also fails to grapple with the point.  Why does choice matter?  Why shouldn’t people be able to choose what they like without being ridiculed or humiliated for those choices?  I’m on ‘Team Non-Biologically Determined’ when it comes to the question of sexuality, but I’m also on ‘Team If You’re Attracted to The Same Sex but Don’t Have the Gay Genes You Have Made An Awesome and Perfectly Legitimate Choice and Nobody Should Question Make You Feel Bad for That’.  It’s not choice vs non-choice; it’s respect vs disrespect at play here.  In a sense, opponents of 18C are asking us to respect the choice of people to humiliate and ridicule others based on their race.  People who don’t want to extend 18C to religion are similarly asking us to respect the choice of people to humiliate and ridicule others based on differences of belief.

Which brings us back to Simons.  Simons believes that we should have legislative room to be disrespectful to each other without the consent of the person being harmed.  She couches this in the entitled and undergraduate language of ‘freedom of speech’.  It is clear that, if we want to live in a Republic of Reasons, we need a more mature model of this freedom, especially when it affects the apparent right of others to engage in society unmolested.

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.