Saturday, 9 October 2010

Saturday SoapBlog: Chris Berg - The right to freedom of speech is being threatened

With the debate loud and clear on CairnsBlog with the $350,000 defamation case from Cairns Regional Councillor Alan Blake against Michael Moore, is it okay or not okay to criticise our public figures?

Chris Berg, a Research Fellow with the Institute of Public Affairs and Editor of the IPA Review, reviews the furore about online shock columnist Andrew Bolt, who is also being sued for defamation. However, unlike CairnsBlog, Bolt enjoys the luxury of NewsLtd lawyers, He's being sued under the Racial Vilification Act over two columns he wrote last year.

Berg is a regular columnist with the Sunday Age and ABC's The Drum, covering cultural, political and economic issues. He says the right to freedom of speech is being threatened in the courtroom.

Andrew Bolt is getting sued. Don't applaud yet. There's been a lot of outrage about the federal government's proposed internet filter.

But lawsuits like the one now faced by the prominent conservative Herald Sun columnist are as much a restriction on freedom of speech as anything Communications Minister Stephen Conroy has come up with.

Nine people are suing Bolt for an article that claimed their Aboriginal self-identification was ''fashionable''. He had said they all had part-European, part-indigenous heritage (and fair skin) with an opportunity to describe themselves as a range of nationalities. But, he wrote, they chose to describe themselves as Aboriginal. Doing so gave them ''political and career clout''.

At worst, Bolt is deliberately and provocatively disrespectful.

But as their lawyer has pointed out, there are two tests of whether someone is Aboriginal. The first is an objective genealogical test: a fairly clear cut question of whether they have Aboriginal ancestors. The second is subjective: whether a person chooses to self-identify as indigenous, and whether they are ''communally'' regarded as such.

Bolt's columns criticised political appointments and government awards that pivot on an individual's Aboriginality. They're absolutely within their rights to apply for those grants, prizes and positions. But like it or not, by sponsoring things like indigenous-specific art and literary awards, the government makes what constitutes Aboriginality a political question.

And it's a question academics have been trying to unpack for decades. Universities teach courses in the ''concept of Aboriginality''. Surveying the literature in 2002, the Parliamentary Library could only conclude ''an individual's ethnic identity is always to some degree fluid, multiple, differing in degrees, and constructed''.

Of course, Bolt tackles the issue with trademark belligerence. The merits of his argument will now be tested in court. But put aside the conservative commentator. This isn't about the collected works and opinions of Andrew Bolt. And put aside the complexities of racial identity, Aboriginality and reconciliation.

This case is troubling because of what it says about our right to freedom of speech. If successful - or just really expensive to defend - this lawsuit could have a stifling effect on political debate.

The 19th century philosopher John Stuart Mill argued that only by airing contested views publicly and freely could the truth be known. Societies need free speech if only to test and challenge controversial opinions.

And we're not going to have those necessary debates while legal action stifles one side. No matter how wrong or misguided that side may be.

Silencing Bolt doesn't just silence him. It potentially silences the speech of others who might be afraid of being similarly dragged through the legal system.

After all, Bolt and his employer can afford to defend themselves. No doubt they have lawyers on call. Newspapers know their way around court.

By contrast, bloggers, amateur journalists, Twitterers and Facebookers commenting on sensitive political issues - for whatever reason, with whatever motives - are much more exposed to punitive legal action than newspaper columnists are.

Should only the rich be able to have controversial views? If anything is going to suffocate the blossoming citizen media, it will be lawyers.

Bolt is being challenged under the federal government's Racial Discrimination Act. But that's hardly the only law on the books that has a damaging impact on free speech. Our politicians have a long and shameful history of using Australia's defamation laws to sue their critics - threatening someone with a defamation suit is a public relations tactic.

In Victoria, our Racial and Religious Tolerance Act, introduced in 2001, has been co-opted as a stick for religious groups to hit each other.

First, the Islamic Council of Victoria took the fundamentalist Christian Catch the Fire Ministries to court. Then a Wiccan prison inmate took the Salvation Army to court. Then the Australia-Israel Jewish Affairs Council threatened to take the Islamic Information and Services Network of Australasia to court.

That's a shabby record for a law supposed to promote tolerance, not division.

Suppressing offensive views can be counterproductive. The churches and mosques targeted by the Victorian Racial and Religious Tolerance Act were able to say their beliefs were being persecuted - attracting more followers. The victimised dissident is a hero, not a villain.

To his credit, Bolt is a prominent critic of Victoria's vilification laws. Last year, the Human Rights Consultation Committee faced the task of recommending what should appear in an Australian bill of rights. It struggled to balance our right to free speech with a new ''right'' demanded by some - the right to not be offended by the speech of others.

But there are an infinite number of ways people could be offended. How could we possibly prevent all outrage?

You can have the right to free speech, or you can have the right to be protected by the government from the offensive speech of others. You can't have both.

There are other ways to respond to distasteful views.

Refuse to buy the Herald Sun. Tell your friends to do the same. Condemn it in other opinion columns. The solution to bad speech is more speech. If something is offensive, it deserves to be condemned, loudly and often.

This week saw the first Aboriginal member of the federal House of Representatives sit in Parliament. Ken Wyatt is a Liberal. He promised to advocate for Aboriginal and Torres Strait Islander people in Parliament. His mother was one of the stolen generations. In his maiden speech, Wyatt thanked Kevin Rudd for the 2008 apology.

That's a genuine step towards reconciliation. Wielding the legal system as a weapon to try to silence critics isn't - no matter how offensive they might be.


Peter Lambert said...

Good work Mick- very good work

Dallas said...

a new ''right'' demanded by some - the right to not be offended by the speech of others

While some speech (or writing) may be intended to be offensive, it is only truly offensive if taken to be so by the one who so feels offended. Those so offended have at their disposal alternatives. This includes an option to ignore the speech or text and be sufficiently in control of their own thoughts (and consequently their feelings) to tolerate it as simply the view of another but one with which they do not agree.

Sadly, it seems the legislature will be pressured into attempting to capture in statute the perceived “right” to which Mr Berg alludes with the resulting legal and social melee. Result: no net gain by any party rather a net loss for society in general.

Bryan Outlaw said...

I know Andrew Bolt. Andrew Bolt is a friend of mine.

You're no Andrew Bolt. In fact, you're not even a Bryan Law!

Syd Walker said...

There's not much in this story that doesn't qualify for the designation 'offensive absurdity'.

The odious Andrew Bolt certainly qualifies. So does his revolting employer, News Corp. Chris Berg and the IPA qualify too - as do the plaintiffs and their lawyers for bringing a case under this ridiculous 'Tolerance' Act.

It is tempting to march them all off to re-education camp, but in the absence of a police state controlled by decent, fair-minded libertarian-leaning people, the most appropriate course of action is prompt repeal of the misguided Racial and Religious Tolerance Act by the Victorian Parliament.

What we do need is a much stronger guarantee of free speech - some kind of equivalent to the US First Amendment that's appropriate to our own political system and consititution.

I bet a referendum on that proposition would pass. How odd (or perhaps not?) it's never been put to the Australian public.

Lillian at Yorkeys said...

Bryan Outlaw - speaking of bolts, please go right now to the mirror and put that nice bolt back in your forehead. Now... ahhh, doesn't that feel better.

And naughty you for trying to scare the children and pensioners with your rants.

Calm down, breathe deeply & go & have a nice sleep. See, it's easy, isn't it?

Bryan Law said...

I’ve spent several months in Queensland prisons for exercising my rights to free speech, free association, and free assembly.

Sometimes I think people forget that these rights weren’t just given us by the King. They had to be fought for. And they have to be exercised on a regular basis, lest they atrophy.

While the “right” to free speech is given by kings or parliaments, the power of free speech is given us by God (take that all you radical atheists). Now we are at the very beginning of the 3rd Millenium, we have to exercise our God-given power to protect and expand our rights in civilisation.

Applying that principle in the digital era is now open. I for one am unhappy at all attempts by the nanny state to constrain personal freedoms. I appreciate Mike for providing the Cairns Blog to contest the political status quo.

Allies to Free Speech is organising a speak-out in front of the Cairns Courthouse at 9.30 am, Friday 29 October.

No Blake lover said...

Why has no-one linked to this right to freedom of speech of which they refer?

If Australia had the same 'freedoms' as granted to US citizens under the first amendment Mike Moore would still be in court on the 29th, or do people believe there are no defamation laws in the US?

The case outlined above will come to nothing, as it really is an opinion, Mike Moore went far beyond opinion, as you will all find out on the 29th of this month.

"the power of free speech is given us by God"

Do you have a link to that Bryan? Is it written in the bible somewhere? I wonder why, in 2,000 years, no-one has told the christian church, it would have saved an inquisition or three.

MG said...

Lordy Lordy

Now we are linking God to "free speech"?

What's next?

Your issues and debate get lost in your writings which have no direction and purpose.

The only thing you consistently write about is yourself!!!!!!1

Bryan Law said...

I don't have to link God to anything. you know, omnipresent, immanent, that kind of caper.

Lord Knows said...

Bryan I see from your profile that you are a "God-like intellect wrapped in a pleasing personality... along with the wisdom required to kick-start social justice in the third Millenium after Christ..."

Does God approve of such a statement? Is he a he or a she?

Bryan Law said...

Lord Knows the pious don't try to limit God with human-scale labels. Transcendent, sublime, omnipotent (so watch it).

Bryan Outlaw, the Voice of Truth said...

Bryan Law babbled thusly: "I’ve spent several months in Queensland prisons for exercising my rights to free speech, free association, and free assembly."

No, you've spent months in Queensland prisons for being a criminal thug and worthless human being. Free speech had nothing to do with it.

We're still waiting for you to do your time for criminal defacement of campaign signs.

PaulB said...

So if God gave us free speech, then does it follow that he/she/it can take it back?
I find it funny that Bolt is such a pathetic Murdochian shill and liar for Israel and yet it's a Jewish lawyer (is there any other kind?) leading the case against him.