My submission to the Senate Standing Committee on Legal and Constitutional Affairs

I have sent a submission to this committee, which is currently inquiring into the Australian government's package of Bills to introduce federal legislation on religious discrimination. The Committee has gradually been publishing submissions here - it looks as if they are publishing all submissions received from organizations and a selection of those received from individuals. My submission, if you care to broach it, is number 180.

At the time I wrote the document, I had read a large number of submissions to the parallel inquiry by a different parliamentary committee (see my own submission here) plus a smaller number of the submissions to the Senate Standing Committee on Legal and Constitutional Affairs. Since then, as more submissions have been published, I've read most of them and have learned a few points that might have made me change some things if I'd had the benefit of reading all the other submissions first.

For example, I was unaware when I put in my submission that the legislative package provides for a review of the legislation two years after it comes into force. Given that, my recommendation that there be a review of the legislation three years after it comes into force, in order to consider how it is operating in practice, looks a bit silly. Oh well.

I have also seen some useful commentary on whether section 12 of the main Bill achieves its purpose of overriding certain state legislation, or whether it is drafted in such a way that it looks more like an attempt to amend the state legislation (for more, see submission number 31 by Professor Anne Twomey). The latter, or anything like it, is not something that the federal parliament can do. Arguably, the section should be modified so that it more clearly provides rights that then prevail over the state legislation. This is a technical issue in Australian constitutional law, but I think Professor Nicholas Aroney (see submission number 145) has probably been correct to respond by providing some alternative wording for the section.

It also looks as if I was wrong in thinking that, in the kinds of circumstances that have allegedly been arising, "no Muslims" policies adopted by shops and restaurants are likely already unlawful under federal law. There is relatively recent legal authority that seems to settle this issue the other way. But in any event, my recommendation did not rely on this one way or the other, as you'll see if you make it to the end. I recommended that these allegations be investigated and, if needed, specifically addressed to ensure that there are laws to prohibit such abuses even where there are no state laws that currently apply.

Otherwise, at this stage, I think the submission - all 22,000 words of it - is solid, especially for something that I wrote very quickly over the Christmas/New Year break.

I support provisions that will lessen some legal restrictions on speech that either advocates or criticizes religious views. I think that much of the opposition to this is far-fetched and illiberal. Much of it is based on misconceptions. More generally, however, I don't support the enactment of this comprehensive legislative package at this point of time. I am open to argument on many of the issues, but those issues, and the draft statutes themselves, are highly complex, and I don't see any immediate prospect of getting them "right" and in a form that will achieve a wide measure of community acceptance. Much of what is in them, as well as much that is not dealt with, needs much more extensive academic, political, and community debate.

Part of the problem, as I emphasize in my submission, is that religion is not like race or sex. Religious beliefs are highly controversial and highly motivating. In a sense, religions are more like political ideologies than like races. Each religion purports to be the true one, and the right to proclaim your religious beliefs and insist they are true is an important aspect of religious freedom. There should be room for vigorous public discussion of religion and religions, including their advocacy and also including views that challenge to them

While religious freedom is important, this is a freedom from religious persecutions and impositions by means of state power. It is also a freedom that includes freedom of religious speech and association, which in turn implies some ability to discriminate in order to preserve a group of like-minded people. It also implies an ability to engage in public debates about religion that might become disrespectful, uncivil, immoderate, and even hurtful. In short, there is a tension between religious freedom (including freedom from religion) and protection from religious discrimination. While I have ideas about how that tension should be resolved in various situations, this is something on which it's going to be extremely difficult to obtain either an obviously correct answer or a social consensus within a liberal democracy.

Some parties seem to think that an anti-discrimination statute dealing with religion could simply use existing Australian statutes, such as those prohibiting racial discrimination and sex discrimination, as a template. I disagree. I think that idea shows a failure of understanding in respect of religion and/or a failure to take the phenomenon of religion seriously. Any such simple approach could have far-reaching effects on freedom of association and freedom of speech.

I'll be watching developments closely and will doubtless have more to say about them from time to time.

Michael Huemer on the costs of suppressing speech

The American philosopher Michael Huemer writes on why it's a bad idea to try suppressing speech that we disagree with. Early in this piece, Huemer makes the following insightful comments; I think this is, with one caveat, spot on:

[T]oday we’re seeing an unusual kind of speech suppression. Traditionally, you get suppression of ideas when there is a single dominant ideological faction in society. Some faction defined by controversial philosophical, religious, or political views manages to take control of society, and then they use the power of the state to suppress challenges to their ideas.

But what we have today is a situation where there remain competing factions with comparable levels of power in our society – neither the left nor the right has gained overall control of the society – and yet one faction is still trying to suppress dissent from their main ideas. Normally, this doesn’t happen because you simply don’t have the power to suppress dissent unless you have a very dominant position in society. And since you know this, normally, you don’t even attempt it.

But people are doing it today because our society has become highly ideologically segregated. There are particular institutions or segments of society that are extremely dominated by a particular ideological faction (the woke/SJW left), even though that faction is a minority in the larger society. So this faction tries to suppress dissent using the institutions that they control. They also use the much greater emotional commitment and activist tendencies of their faction’s members to persecute the other side, e.g., starting petitions, email campaigns, etc., to try to cause personal harm to blasphemers. (It’s hard to organize an activist campaign among conservatives, and even harder among moderates.)

Exactly so - with that one caveat. The conservative faction does seem to be getting better at organizing similar campaigns, as with the recent campaign against the movie Cuties and everyone associated with it.

In any event, this means that your speech might be suppressed within your own world, where you hang out mainly with people from your own faction. Within that world, you'd be prudent not to express dissent from what the people around you are saying and seem to be thinking. The "other side" might want to hear these dissenting views, but probably for its own propaganda purposes rather than because it will take your overall worldview or value system seriously. The effect is that nuanced, complex, "hybrid" views - views that don't fit with whatever packages are currently endorsed by one or other of the main competing factions - tend to be squeezed out of public, and even private, discussion.

That is intellectually disastrous. It is worth noting that the packages on offer from the existing factions are not the natural result of which ideas are most coherent with each other (even if there's some element of that), but mainly the result of historical processes of alliance-forming, of the ideas of certain charismatic individuals being taken up by their disciples, etc. People who adopt one or other off-the-shelf package of ideas do so for largely non-rational, non-principled reasons, such as wanting to share the commitments of people whom they admire, or simply of their peer group.

Thus, we end up with factions who adhere to radically opposed packages of ideas, and who talk past each other while suppressing internal dissent. There is little room for people who are more principled and consistent in their reasoning to develop intellectually attractive alternatives to the off-the-shelf ideologies. Indeed, such people might be silenced, at least in respect of any dissenting thoughts, because it is not worth their while to stick their heads above the parapet in public discussion. They might even bite their tongues much of the time in private discussion with all except their very closest and most trusted friends.

Huemer makes points that are broadly consistent with this, but worth consulting in their own right, as his emphasis is slightly different from mine; it is not inconsistent with mine, as far as I can see, but he has his own set of priorities. He concludes with thoughtful comments about what happens if a generally left-leaning Western academia (together with left-leaning journalists and broadcasters, and others with large platforms) makes assiduous efforts to suppress the ideas of the "other side", i.e. ideas that tend to be held by political conservatives. In a polarized environment, the suppression might be locally successful, but it will not be successful within the broader society. Instead, a very large proportion of the society - maybe about half - will come to see left-leaning Western academia as not only wrong but actually evil, given its apparent wish to suppress opposing views. As a result, Huemer says, a very large proportion of society will reject out of hand whatever comes out of academia. That is also disastrous:

[T]hey draw the conclusion that one can’t trust anything coming from [what they see as] the libtard academic and media elites.

This creates obvious problems. What if the academics find some important information that people really need to know? They try to tell the public, but half the public assumes that it’s just part of some partisan agenda. The mainstream media reports on it, but again, half the public distrusts anything they say (that isn’t confirmed by their preferred sources).

The academic and media solution: Keep repeating “People should listen to us, and if you don’t, you’re being stupid and partisan.” How well do you suppose that works? Right, it just backfires and pushes people further into their bubbles. There’s nothing for the academics and mainstream reporters to say, because the well has already been poisoned – anything those sources say is just going to be interpreted as more partisan manipulation.

While I'm most worried about suppression of worthwhile, but unfashionable, ideas within the broadly-defined academic and cultural Left, Huemer is describing a somewhat different, yet readily recognizable, phenomenon.

For both reasons, efforts to suppress ideas, carried out within the academic and cultural Left - or on its home turf, such as on university campuses, at literary festivals, and in left-leaning media outlets - end up being unhealthy. They hinder intellectual progress and prevent a valuable intellectual ferment within the Left, causing potentially worthwhile contributors to feel silenced and alienated. (I can report that there is plenty of this around, because some people know my concerns about all this, and that gives them the confidence to confide in me.) At the same time, it makes the dreaded "other side" think we're simply evil, not just misguided or sincerely wrong, all adding further to the polarization and dumbing down of society.

Gawker's gutter journalism - and worries about freedom of speech

(This article was originally published on The Conversation on 17 July 2015. I am republishing it because of subsequent - including very recent - issues surrounding Gawker and its interpretation of free speech. Read the original article.)

Over the past 24 hours, Gawker, the controversial gossip blog owned by Gawker Media, has earned some extraordinary and entirely justified opprobrium. It brought this on itself by posting a prurient and cruel story about the alleged sexual conduct of a finance executive employed by rival media company Condé Nast.

The link I’ve provided above is not to Gawker’s site, but to an archived copy of the particular post. Given the way this news story has gone viral, I cannot protect the name of the individual accused of hiring a gay prostitute, but I can at least do something to minimise adding clicks on Gawker’s site. Though it will have little effect, I likewise won’t name the smeared person. That will mean one less direct link between his name and Gawker’s allegations. Still, the damage has been done: there is little we can do ameliorate it, since the post has already been seen by a vast online audience.

Gawker’s prurient post

As Yezmin Villarreal accurately describes the Gawker post (writing at Advocate.com), it alleges that a named finance executive “tried to hire a gay porn star for sex at a cost of $2,500.” Villareal adds, again accurately, “The [Gawker] story contains screenshots of text messages and photos that allegedly identify the man, who is married to a woman and has children.”

The man concerned is a senior executive in a large company, but he is not a politician or in any other sense a public figure. He is not a morals campaigner, or an anti-gay campaigner, or a person who could justly be accused of public hypocrisy if the allegations turned out to be true. Even if there could be some circumstances in which such a post might be justified - which I doubt - this is remote from them. The post appears to be pure clickbait, displaying a callous, if not outright malicious, attitude to an individual and his family.

Worries about freedom of speech

I am a free speech advocate, a somewhat prominent one. I’m very suspicious of government censorship, and I strongly support the rights of artists, intellectuals, and ordinary people to express themselves frankly and fearlessly.

Even where government censorship is not involved, I worry when I see ideas, opinions, and cultural productions (such as literary and artistic works) interpreted unfairly or censoriously. In many cases, I’ll defend individual speakers and artistic creators, and their books and movies, and the full range of cultural productions that can have meanings and influence our thoughts. In those many cases, I ask for a degree of charity, sensitivity, and complexity of interpretation sufficient to give writers, speakers, artists - and ordinary people - their due.

I can’t, however, say much in defence of Gawker, particularly when it is Gawker and its author that have used a very large public platform to single out and smear a specific private individual. To me, it’s gratifying that so many voices are being raised in that person’s defence and against Gawker’s actions.

Still, these sorts of situations can test our understanding of freedom of speech, and perhaps also challenge our commitment to it. We might wonder what redress someone should have when treated in this way. Perhaps he will be able to sue for defamation, but this is difficult in the US, and I expect it will be impossible if the allegations are, indeed, true. Should he be able to obtain redress in the courts? Mightn’t freedom of speech argue against that?

My view is that in an extreme case such as this, where there has been such a deliberate and potentially devastating intrusion on an identifiable individual’s privacy - and from an author with such a large platform - some legal redress should be available. Indeed, it should be available whether the allegations are true or not.

That view may surprise some people who know me as a free speech advocate, but allow me to explain.

Free speech - what’s it all about?

Reflection on such cases can sharpen our conceptions of what free speech is about: of what it is actually for. Speaking for myself, and not for other free speech advocates, I defend a conception rather different from those I often see from political libertarians. I am less fixated on the power of governments; I am less absolutist in opposing restrictions; but at the same time, I worry about a wider range of threats. I worry not only about state power but also threats from private power and popular opinion. Above all, I am concerned to protect the free exchange of opinions and ideas, whether the free exchange is impeded by state power or by power of other kinds.

This can lead to a more subtle and difficult analysis than the simple attitude of: “Government censorship bad; everything else okay.”

Governments can, of course, restrict the exchange of opinions and ideas, and they frequently strive to do so. They wield frightening powers, including the power to imprison and sometimes even the power to kill, and this should make us especially vigilant about their actions. Liberal-minded people - people thinking and working within the great traditions of liberal political theory - will thus be concerned about government censorship of opinions, and more generally about the use of government power to stifle discussion and debate (somewhat related to this, we are also concerned about government attempts to control literature and the arts).

With all that duly acknowledged, much speech contains little in the way of opinions or ideas (and displays little artistic merit of any kind). Even in those cases, I lean strongly against government interference. General considerations relating to individual liberty remain important, especially considerations relating to the value of expressing our thoughts and personalities without fear. Thus, I defend a broad scope for freedom of speech, even of speech that possesses little discernible value except to someone who is letting off emotional steam.

But I have never been an absolutist about repealing all laws restricting, for example, defamation, hate speech, and commercial pornography. In all these cases, I am willing to look at proposals on their merits, though I generally want less - rather than more - government restriction. I don’t rule out all possible restrictions: there can be categories of speech that are patently harmful and vanishingly unlikely to have countervailing value of some kind.

John Stuart Mill and On Liberty

In the case of speech that defames individuals, I support tight limits on what sorts of speech can justify damages awards from the courts. There is no contradiction in adding that there is actually an arguable case for defamation law to be more accessible in the narrow range of cases where it should apply.

When we’re dealing with such issues, it can be helpful to wonder what John Stuart Mill, author of On Liberty (1859), might have thought. On Liberty is not an infallible holy text, or anything at all analogous, but Mill pondered such issues deeply, and his body of work contains much wisdom that remains useful.

Mill was concerned with what he called a “liberty of thought and discussion” about topics of general interest. He supported a strong freedom to hold and share opinions on those topics, without suppression by the government or the less formal tyranny of popular opinion and feeling. He did not require that the participants in social discussion maintain an unnatural standard of politeness and detachment, but nor did he support the publication of damaging lies about other individuals, or even of damaging truths about them that invaded their privacy. The Millian argument for freedom of speech does not go so far - though, in another dimension, it goes further than a concern with state censorship.

Accordingly, Mill would have opposed censorship of ideas by the government; importantly, he would also have opposed social actions, such as organised boycotts, of people merely for their opinions on general topics. He would not, however, have required that we put up with all attacks on individual citizens' reputations and private lives. For example, Mill’s name cannot be invoked to oppose a law against “revenge porn”.

Revenge porn has nothing to do with opinions on topics of general interest, but everything to do with maliciously attempting to harm a disliked individual. I doubt strongly that Mill would oppose laws against it if he were alive today. Revenge porn is not part of liberty of thought and discussion.

How to think about gutter journalism

In the case of gutter journalism, such as Gawker’s post on the unfortunate Condé Nast executive, I see nothing in Mill’s conception of liberty of thought and discussion that could be used in its defence. Nor does gutter journalism of this kind merit defence for any artistic or literary merit, for any complexity that is worth prizing, or for any other serious kind of value that it might be imagined to have.

The harm that can be caused by such writing is not remote, indirect, or speculative. This is exactly the sort of publication that can obviously ruin an identifiable person’s life (and the lives of family and loved ones). Free speech advocates need not, and should not, defend gutter journalism.

It may be difficult to frame appropriate laws. In principle, however, even free speech advocates can support narrow laws to protect individuals from the worst attacks (they can do so even while working to reduce unwarranted kinds of censorship).

Though this is not a case of revenge porn, my free speech advocacy does not prevent me from - for example - supporting narrowly and clearly drafted revenge porn laws. Nor should it prevent me from supporting laws against other extreme kinds of personal smearing or violation of individual privacy.

Conclusion

Beyond legal solutions, with their undoubted problems of interpretation, accessibility, and enforcement, and their frequent unforeseen consequences, we can do more. In particular, we can work to marginalise individuals and organisations that engage in the most serious kinds of defamation, public shaming of individuals, and invasion of people’s private lives.

Even if there’s seldom legal redress against Gawker and others of a similar ilk, we can agree to regard them, and to speak of them freely, as the callous and anti-social institutions that they are.


Edit (18 July 2015): An outcry - of which this post was a small, and surely insignificant, part - has led Gawker to remove the offending post from its site. That’s a welcome acknowledgment of acting badly. However, it’s too late to help the individual concerned. Further, the problem extends well beyond one post and well beyond Gawker. Further edit (29 May 2016): In republishing this, I am removing the (now dead) link to Gawker's original article.