Hello there. This is my first entry on my new blog. This blog will, in the main, be a forum for my social commentary. I tend to see the world through a philosophic lens. I find it very interesting to try and elucidate the fundamental philosophical issues that are raised by a particular debate or controversy. I will do this, to the best of my ability, in order to make clearer for myself, and any readers that I may have, what is going on in the world.
I thought for my first blog, I would take a stab at the recent Andrew Bolt case. Probably anyone that knows me will expect that I am no fan of Andrew “at least Glenn Beck is entertaining” Bolt. My favourite bit i’ve seen him do was drink from a freshly opened can of coke in order to prove that carbon dioxide is a harmless gas, and so climate change isn’t real. Smart guy. Anyway, this blog post wasn’t meant to be a critique of the logic used by the like of Bolt and his equally intellectually hollow partner in crime Tony Abbott, although maybe i’ll look into that soon enough. What I wanted to talk about was his recent conviction as a certified racist by a Federal Court. I mean i’ve known Andrew Bolt is a racist for a while. Since I read that he thinks the stolen generation was a good idea really. But it’s nice to make his racism official.
Andrew Bolt and his defenders claim that the result of the case was a gross violation of Freedom of Speech. This is what really interests me. Looking strictly at the facts of the case, this wouldn’t seem to be the case because the judge refused the accusers requests to prohibit Bolt from publishing similar material (given that there was also no forced apology or fine it’s not clear what Bolt’s actual punishment is). However putting this to one side for the moment, and just looking simply at the idea of the government telling people what they can and can’t say, it would seem that there is some limiting of free speech here. I mean as soon as someone forces you, especially with the coercive power of the state, to not do something you would otherwise do, that is a limiting of your freedom. So yes, I think it is obvious that in at least some sense the trial and the laws it was brought under – Paul Keating’s 1995 Racial Hatred amendment to the Racial Discrimination Act of 1975 – limit freedom of speech. It tells people what they can and cannot say in certain circumstances. My point, however, is – so what?
The idea that free speech is an absolute and ultimate human right arose during the enlightenment in the 1700s in Europe. This philosophy highly influenced America’s founding fathers, which is why they chucked protection of free speech into their first amendment of the US Constitution. I can understand why they did it. I mean it was in a time when a king was fairly likely to chop off your head if you said anything bad about him. To make free speech an absolute right seems like the only prudent thing to do in such circumstances. Such a context makes the saying by Voltaire or whoever “I detest what you say, but will defend to the death your right to say it” seem noble, and maybe it is. Most defenders of Andrew Bolt follow Voltaire (or whoever) in this line of thinking. One quick search finds this quote; “For freedom of expression to have any real meaning, we must guarantee it to those whose views we despise. That benighted category includes neo-Nazis, Islamic radicals, sheet-wearing Klansmen and anyone else we may dearly love to hate” by Ted Lapkin; defending Bolt in a Fairfax paper funnily enough. I guess the difference between me and dear old Ted is that under certain circumstances, given certain contexts, I have no issue with limiting the freedom of expression of Nazis, Jihadists or KKK members.
Freedom of speech is not, and should not be, absolute. One point I want to emphasis is that it is largely about context. I already argued that in the context of the enlightenment and the American revolution, absolute free speech was probably a good idea. At the same time, in the context of post world war two Germany, banning public portrayals of swastikas was also probably a good idea. Good on ‘em. Holding freedom of speech as an unbendable, moral absolute, as the US Supreme Court has, leads them to tolerate crazy homophobic disgusting protestors at funerals in the US. To pass a law banning protests at funerals would limit the freedom of the protestors undoubtedly, yet I don’t think i’d be out on a limb here if I was to say such a law wouldn’t be a breach of anyone’s human rights, and in fact would probably be a damn good idea.
I feel weird to admit it but what i’m arguing here is for pragmatism over idealism. John Stuart Mill, that giant of English liberalism, is frequently trolleyed out for arguments in favour of free speech. Indeed he was quoted in my friend Ted Lapkin’s article. However what is never mentioned is that John Stuart Mill was a utilitarian. His underlying reason for believing in freedom of speech was that it was pragmatically the best way for society to function. By allowing all ideas to be heard you get to hear the best ideas, which will ultimately triumph because, after all, they’re the best. This was a practical rather than moral argument, based on Mill’s empirical observations. If, in certain circumstances, allowing anyone to say whatever they want, turned out to be overwhelmingly bad for society, then Mill would i’m sure have allowed for exceptions to his love of free speech.
I’ve seen lefties defend Bolt as well as righties (or wrongies) because of their love for consistency and Voltaire (or whoever). I think the pragmatic line I am taking is one of the key differences between the two main centre leftish ways of thinking – social liberalism and social democracy. Social liberalism came from the Universities, whereas social democracy came from the coal mines. Social democracy is concerned, first and foremost with what is best for people and what works. It is, in some strange ways, more left wing, but less idealistic. Certainly less rigid. It is this pragmatism that allows social democrats to embrace affirmative action (it works to achieve desired outcomes) whilst social liberals battle it out in their consciences.
Of course I understand that once you get rid of the absolute, it is hard to know where to draw the line. Yet I reject that this will necessarily lead us down a slippery slope. Going back to context; in the context of Australia, we have a strong freedom of expression culture. Completely unreasonable and ungrounded limitations of free speech would not be tolerated by the people or by the courts. After all free speech, although not sacred without an American style Bill of Rights, is clearly valued by our common law system (and the judge in Bolt’s case took this into account when refusing to prohibit Bolt from publishing future articles of a similar nature). The irony is, of course, that Bolt as an unblinking conservative, walked in step to John Howard’s pro-common law and anti-Bill of Rights tune; the same Bill of Rights which would have likely protected his absolute right to say anything he wants about anyone. (please refer to the introduction by Bolt’s Liberal Party friends of on the spot fines for public swearing for another healthy dose of free speech related hypocrisy).
So forget freedom of speech and start looking at freedom from moral absolutes. Society is a balancing act of competing interests. No one’s freedom can be absolute because different people’s freedoms conflict with each other’s all the time. Is my freedom to listen to loud music in my own home more important than your freedom to sleep a good night sleep in your own home? Is his freedom to express his dumb sexist beliefs more important than her freedom to go about her day without suffering sexist taunts? The, admittedly tricky, job is to strike the right balance. I think it is worth allowing courts to decide such issues on a case by case basis. All too often, the law sides with the privileged in such conflicts though. It would be illegal to lie about the worth of stock to potential investors. Why is it that Bolt et al have no problem with limiting free speech to protect the interests of businessmen but as soon free speech is limited to protect an oppressed minority like aboriginal people, they become Free Speech absolutists? It is good to see, that in the Racial Hatred Act, an attempt has been made to make a practical limitation of free speech in order to protect aboriginal people from humiliating (and crucially, very public) lies, especially given the context of racism in Australia and the behind the eight ball position that most aboriginal people find themselves in from birth.
Elliot Brice's musings. 
An interesting first post to what promises to be a great blog. Looking forward to reading more of your articles.
It is your right to publicly flog Andrew Bolt in this blog. It is Andrew Bolt’s right to rag on Aboriginies and it is the Aboriginies right to humiliate him back. We should be allowed to say what we think. The fact that so many dickheads listen to Andrew Bolt, Alan Jones and Tony Abbot pisses us all off, especially in the younger generation. I like that you acknowledge the difficulties of not dealing with the absolute right of free speech. Lines would be blurred and I can imagine the cluttered court systems already. Ignoring this and presuming there are good controls in place, I get the sense you are arguing for exercising an injunction on free speech when a racial miniority is at stake? If this is the case, I feel it is the governments duty to protect and educate racial miniorities. Obviously a different issue and one which Australia has utterly failed itself on. As an aside, did you know that we are the only western country to be called racist by Amnesty International? Fucking disgrace. Anyway, the courts should not be burdened with issues of racial hate unless the involve violence or slander/libel or some other civil suit. I feel like Bolt was awfully close to libel.
As for the comparison with KKK and Nazis, I think its apples and oranges. We are talking about word here, not sticks and stones. This is thanks to another moral absolute right that no harm should be allowed to come to one person from another and if it does, there are punishments.
Some laws do infringe upon our freedoms. For instance, you cannot listen to loud music at night because there are council laws which prohibit this. Obviously these laws are for the benefit of the community as a whole and maintain individual rights whilst encouraging the ever-necessary compromise between two individuals. However, freedom of speech is something which must never be taken away. We need to be able to voice what we think. Every single person. It is the second greatest weapon we have to hold the government accountable. You seem to like 1700’s philosophers. Jean-Jacques Rousseau is my fave. His contributions to the social contract are phenomenal. I’m afraid I have to go with Voltaire, Rousseau, Bolt and the rest on this one. Freedom of speech is paramount.
Thanks so much for your comment Brendan, this is exactly what I had hoped for; a Socratic dialogue! Now, although I appreciate your passion for free speech, I must post a comment to rebut a few points. Please feel free to respond again if you feel like it. In fact i’m sure I would enjoy it.
To be clear, I am largely arguing for the status quo. We have laws in Australia, like the one Andrew Bolt was tried under, against hate speech. I am argued that they are, in principle, justified. I think our court system so far is managing to cope so I don’t think that is an issue.
The way I see it the liberals (both the small l and large l variety) who are arguing for absolute free speech, are idealists who have an unrealistic view of society. People don’t exist in a vacuum and what you do has real consequences. This applies to speech as much as it does to other actions. I think it is interesting that you made a clear distinction between words and sticks and stones. There is a philosopher of language from the 50s, J. L. Austin, who argued that words can do things. He called them speech acts and the idea seems fairly common sensical to me. He said that words have consequences and hence affect the real world, depending on the circumstances and context. If I am an umpire standing at the end of a cricket pitch, in the middle of a cricket game, and say the words “out”, then that is not just speech. It is an act. A speech act. It does something. The batsmen must leave the pitch and end his turn of batting. Same (and this is a more famous example) thing as if I yell “there’s a fire” in a crowded theatre. People will start running for the exits. If I yell “fire” and I am in charge of a firing squad, then my words have just killed someone.
I hope that what I have just said may clarify what i’m about to say. I don’t think the KKK/Nazi/al Queda example is an inappropriate one. I was not in my original post, just meaning that I don’t have a problem with banning the ‘acts’ (such as bombing, killing, lynching) but I also don’t have a problem with banning the ‘speech acts’ of such people. I mean, if al Queda tried to make a television ad to recruit and paid for it to go on tv, I think the government should tell them to get stuffed. Most people wouldn’t have a problem with this I feel. But you, I gather, would be forced to allow them to show their ad out of a deference to absolute free speech. But you shouldn’t feel the need. Forget about absolute free speech. Allow free speech in most circumstances but when it may legitimately cause significant harm, then let other, equally important principles take priority. It’s all about looking for that balance.
And I think you have already started looking for that balance as well. It seems you were willing to give up on absolute free speech pretty quickly when it came to libel and slander laws. You’ve already done what you were afraid I have done – “blurred the lines”. After all truth is often in the eye of the beholder and so libel is a very difficult thing to determine. It must be determined on a case by case scenario by judges. You’re not worried about an over crowded court system now? By agreeing with slander laws you’ve already said that people can’t necessarily say whatever they want. I’m possibly just asking that the vague line be drawn at a slightly different spot to where you would draw it. The water may be muddy but we can still swim through it.