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stui magpie 
Prepare for the worst, hope for the best.
Joined: 03 May 2005
Location: In flagrante delicto
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| Post subject: I disagree with what you say, but......... |  |
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I will defend with my life your right to say it.
Isn't that how the principles of free speech are supposed to work?
I know there's been some discussion in the thread about the Nic Nat racial vilification regarding the changes to the RD laws in Australia, which I've largely stayed clear of.
Anyway, I bought a copy of the Weekend Australian at Cairns Airport this morning for something a bit different to have a read of while waiting for the plane. The following article I found to be excellent and I agree with it. I suggest that people who make judgements that stuff must be biased crap because it's in The Australian try to put that to one side for at least as long as it takes to read the article with an open mind, and then make your judgements on the article, not the medium it was published in.
I'd never heard of the bloke before I read the article, but I thought it was good enough to be posted completely so people don't have to do google gymnastics like I did to get around the paywall.
David, I'd be very surprised if this didn't directly summarise your thoughts.
| Quote: | THE measure of a society’s commitment to free speech is the extent to which it protects offensive, unpopular speech. Free speech is hard: it has any meaning only if it protects the most virulent and obnoxious of views.
Disturbingly, it has become more and more clear that many Australians wish to protect only speech that we find innocuous.
Watching the section 18C debate unfold from out here in the Australian diaspora has been troubling.
Having spent some years in the US, where I helped set up a human rights organisation focusing on some of the most repressive closed societies, the absence of a serious constitutional and cultural commitment to free speech in Australia seems especially glaring.
No American state or federal legislature would have dared enact a provision like 18C. Its noble public policy goals are clearly outweighed by the fundamental right to free speech and, anyway, its terms are overbroad and its exemptions are limited.
But if they had enacted it, 18C would have been invalidated as unconstitutional by the courts under the First Amendment to the American Bill of Rights.
The debate in Australia has proven that we don’t have the same tradition of respect for freedom of speech as Americans do. They have long recognised, correctly in my view, that free speech is the pre-eminent human right. As Robert Bernstein, founder of Human Rights Watch and my old boss in New York, once told me: free speech is the right from which all others flow. It is the right that guarantees all the others.
It is for this reason that we must tolerate the expression of even the most odious of views. Truly free and unfiltered open discourse is the lifeblood of democracy.
I have heard talk of rights such as “freedom from racist abuse”, and similar such formulations. Those who make such claims misunderstand freedom of speech.
Free speech is a meaningless concept if it protects only inoffensive, popular views.
In a free society, we are free to express views that will offend other people. Yes, there are narrow limits to free speech, principally around speech which rises to the level of incitement to, or threats of, violence.
But there is no right not to be offended. For instance, as a Jewish Australian, in exchange for being a citizen of a country which permits me to say virtually anything, I accept that nasty, vicious things might be said about my community. I accept that ignorant bigots will use anti-Semitic stereotypes and deny the Holocaust.
The correct response to such racial and ethnic abuse is ridicule, not censorship. For two reasons. Firstly, because it is fundamentally wrong to censor speech in a free society. Secondly, because it doesn’t work.
The Europeans have a long tradition of banning hate speech, but racism, anti-Semitism and anti-Muslim abuse are at fever pitch on the Continent. French Jews have been leaving the country in ever-increasing numbers. For all France’s paternalistic hate-speech laws, its Jews live under threat and so do other minorities.
It is in Europe, with its “protections” against hate speech, that Holocaust denial and anti-Semitism run rampant, and it is in Europe that minorities are embattled and politically disengaged.
I understand why my friends in the Australian Jewish communal leadership, who have made much use of section 18C, take a different view. I respect their view and the views of other ethnic community leaderships. I am nevertheless dismayed by 18C’s simplistic, censorious, illiberal approach to hate speech. We sell ourselves short when we resort to banning speech that we find offensive.
For all the good intent of supporters of 18C, the provision doesn’t show the deferential respect for free speech rights that liberalism demands. Attorney-General George Brandis, for all the derision that’s been directed at him by my friends on the Left, is correct: Australians have a right to express any view they choose to. They have the right to be bigots if they so choose. And we have the right to ridicule them mercilessly. That is the essence of free speech.
As a proud ALP member, it is disappointing to me that this debate is unfolding along party lines. I agree with almost none of what the government stands for, but it is right on this issue.
What Andrew Bolt said in his articles was hurtful and wrong. Most of it would have been unlawful under defamation law.
But if he wishes to make ignorant comments about “fair-skinned” Aborigines, or if some hate group wishes to deny the Holocaust, I disapprove of what they say, but I will defend to the death their right to say it. That is their right in a democratic society.
Gabriel Sassoon is foreign communications adviser to the Knesset Deputy Speaker and the Israeli Labor Party, based in Tel Aviv. He is former public affairs director for Advancing Human Rights and a member of the ALP. The views expressed are his alone.
Twitter: @GabrielSassoon |
http://www.theaustralian.com.au/national-affairs/opinion/no-respect-for-most-basic-right/story-e6frgd0x-1226868145287#
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Every dead body on Mt Everest was once a highly motivated person, so maybe just calm the **** down. |
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David 
I dare you to try
Joined: 27 Jul 2003
Location: Andromeda
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I agree with the majority of what he says, so I'll pick out the thing that I found most problematic (or, at least, worthy of further critical analysis):
On one hand, he writes:
| Gabriel Sassoon wrote: | | it is fundamentally wrong to censor speech in a free society |
And yet, earlier on, he points out:
| Gabriel Sassoon wrote: | | Yes, there are narrow limits to free speech, principally around speech which rises to the level of incitement to, or threats of, violence. |
So, we already have an inconsistency there that needs to be resolved. Which is true? Is it really "fundamentally" wrong to censor speech if even Gabriel can find exceptions to the rule? And if there are exceptions, why not shift the goalposts slightly, as has happened with 18C?
He might respond that freedom of speech should at least be given the benefit of the doubt when such questions arise, and I'd tend to agree: encourage debate over re-instituting 18C (as will surely occur over the course of the next Labor government), but the burden of proof ought to lie with those who wish to make it law: what is the quantifiable harm in letting people speak and write in a bigoted manner? How specific can we make the law so that it doesn't start reducing the (even more crucial) right to political expression? And how do we get people to stop referring to holocaust denial as if it's something any liberal democracy should even be considering censoring?
We're hearing some of those arguments now, and I feel there is merit to each position. Personally, I think we need to be willing to make—as the writer states—narrow restrictions to freedom of expression where the benefit clearly outweighs the harm. Perhaps, rather than obsessing over the plight of oppressed right-wing op ed columnists [/sarcasm], Brandis would do better to finish the work that was abandoned decades ago and get a bill of rights instituted. Unfortunately, I fear his mob are far less interested in supporting liberty when it doesn't suit their political interests.
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All watched over by machines of loving grace
Last edited by David on Sun Mar 30, 2014 7:27 pm; edited 1 time in total |
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Tannin 
Can't remember
Joined: 06 Aug 2006
Location: Huon Valley Tasmania
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You need to answer just one question:
What might you say under different laws that you are not allowed to say today?
If you can answer this question, then it is possible that you might have a case worth listening to. But until you can tell us exactly what it in fact "banned" which would be rightfully legitimised under any new laws, your case hasn't got a leg to stand on.
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�Let's eat Grandma.� Commas save lives! |
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David
I dare you to try
Joined: 27 Jul 2003
Location: Andromeda
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Is the onus of proof on us, though? Who's to say what might potentially be banned under a broad racial vilification law? A lot of people didn't think the Andrew Bolt case would succeed, but it did.
Here's a list of (mostly unpleasant) arguments that might conceivably be made unlawful under 18C or similar laws (just off the top of my head):
1) The Holocaust never happened.
2) There is a Jewish/Muslim/Zoroastrian conspiracy to take over the world.
3) There are IQ differences between ethnicities.
4) There are other differences in capability between ethnicities.
5) There are significant differences in capability between people from different countries.
6) Some minority ethnicities are privileged in our society over others.
7) White-skinned Aboriginal people aren't really Aboriginal and shouldn't have access to concessions designed for Aboriginal people.
However repugnant we might find those views, I would argue that it should not generally be against the law to make those claims in print or even in a public speech. It would be interesting to see who agrees or disagrees with my point.
So that we're arguing based on fact and not supposition, let's keep in mind the exact wording of the act:
http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html
| Quote: | Offensive behaviour because of race, colour or national or ethnic origin
(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.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(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. |
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All watched over by machines of loving grace |
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CP
Joined: 05 Feb 2003
Location: Melbourne
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| Tannin wrote: | You need to answer just one question:
What might you say under different laws that you are not allowed to say today?
If you can answer this question, then it is possible that you might have a case worth listening to. But until you can tell us exactly what it in fact "banned" which would be rightfully legitimised under any new laws, your case hasn't got a leg to stand on. |
Well how about that certain folk identify with a certain racial segment in order to derive certain govt grants & thus deny other deserving members of that segment the same govt grant? |
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Tannin
Can't remember
Joined: 06 Aug 2006
Location: Huon Valley Tasmania
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The current law has been in place for 20 years.
I challenge you to provide even a single example of speech which it has unfairly prevented, and which would be rightfully legal under a new law. Go on, show us what things you think are illegitimately proscribed and need to be added into public discourse. Then we can judge them for what they are worth.
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�Let's eat Grandma.� Commas save lives! |
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Tannin
Can't remember
Joined: 06 Aug 2006
Location: Huon Valley Tasmania
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Bahhh. All of those things you use as examples - yes, every single one - have been said, in public and without prosecution of any kind under the law we have. Every single one.
Yes, even the last one. Bolt was not convicted for saying that "White-skinned Aboriginal people aren't really Aboriginal and shouldn't have access to concessions designed for Aboriginal people", much as he and his supporters love to lie their heads of and pretend that he was. He could have said that 100 times over if he wished. Bolt was prosecuted for aiming demonstrably false remarks of a racist nature at certain specifically targeted Aboriginal people, remarks which he either knew or should have known were untruthful, hurtful and humiliating.
Again, I challenge you to provide even a single example of speech which the current law has unfairly prevented, and which would be rightfully legal under a new law.
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�Let's eat Grandma.� Commas save lives! |
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David
I dare you to try
Joined: 27 Jul 2003
Location: Andromeda
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P4S gave an interesting example in the other thread that I think is worthy of further inspection:
| Pies4Shaw wrote: | In Jones v Toben, it wasn't the mere fact of the "holocaust denial" that led to the outcome - it was the manner of it and the absence of any of the exemptions provided for in section 18D of the RDA. That section provides (at least, it does at the moment):
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.
I think s. 18D(b) of the RDA covers the exception that seems to concern Wokko.
Justice Branson's judgment in Jones v Toben can be read at: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2002/1150.html?stem=0&synonyms=0&query=title(jones%20and%20toben%20)
I'd draw your attention to paras [81], setting out the offending "speech" and [88] to [96]. In reading it, one needs to start from the premise that Mr Toben did not lead any evidence that might have supported a defence relying upon any of the exemptions in section 18D.
Mr Toben's appeal to the Full Federal Court failed. He was eventually sentenced to imprisonment for contempt (that is, failing to obey the Orders pronounced by Branson J). I think he lost his last appeal about that in about mid-2009. In fact, he seems to have been found to have been "guilty of wilful and contumacious contempt of Court on a series of occasions" according to another judgment handed down in May 2012.
His attempt at proceeding against Mr Jones for defamation was permanently stayed in 2012. |
But of course, it's not just precedent that we need to be concerned about here—it's the possibility as well. What could, according to the letter of the law, be penalised? That's the question that needs to be asked.
At the end of the day, if there's a questionably-worded law or poorly-manufactured bridge, I don't think it's good enough to say "well nobody's ever been convicted under this unfairly" or "the bridge has never collapsed before". The law, like the bridge, needs to be renovated.
Edit: the fact that Bolt was convicted not for what he said but for distorting the facts still seems an uncomfortable convolution. If the focus were defamation, he should have been tried for defamation. As it was, the judgement was that "if you say something that's protected by the boundaries of racial vilification law but you get your facts wrong, you can be prosecuted under racial vilification law". I didn't really buy it then, and to be honest it doesn't seem all that compelling now, either.
And I still hold that all of those examples I've mentioned could plausibly be prosecuted under the letter of the law. Does that concern you? Should it?
Second edit: the most important part of the Toben judgement was this, I feel:
| Quote: | 3. The respondent be restrained, and is hereby restrained, from publishing or republishing to the public, by himself or by any agent or employee, on the World Wide Web or otherwise:
(i) the document headed "About the Adelaide Institute";
(ii) any other material with substantially similar content to the document "About the Adelaide Institute; and
(iii) any other material which conveys the following imputations or any of them -
A there is serious doubt that the Holocaust occurred;
B it is unlikely that there were homicidal gas chambers at Auschwitz;
C Jewish people who are offended by and challenge Holocaust denial are of limited intelligence;
D some Jewish people, for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed. |
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All watched over by machines of loving grace |
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Tannin
Can't remember
Joined: 06 Aug 2006
Location: Huon Valley Tasmania
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Oh, read your own post, David. As you yourself just said - apparently without bothering to read and understand what you wrote and quoted, What could, according to the letter of the law, be penalised?
Nothing "said or done reasonably and in good faith" which is "an expression of a genuine belief held by the person making the comment" on "any event or matter of public interest".
In other words, all reasonable, genuine, honest comment on any matter of public interest is already protected as free speech.
I repeat: provide an example of some speech that you wish was legal which is currently illegal. Any example. So far, you have failed miserably in this task - the very first task you must complete if your bizarre quest in support of the unsupportable is to have even a tiny shred of credibility.
(Hint: as your own words have already demonstrated, this example will have to be speech which is dishonest, non-genuine, and made in bad faith, as the law already allows any honest and genuine remark made in good faith.
Remember, according to the law we have and have had for 20 years, Nothing "said or done reasonably and in good faith" which is "an expression of a genuine belief held by the person making the comment" on "any event or matter of public interest" is illegal. So what exactly ar you proposing to change?
_________________
�Let's eat Grandma.� Commas save lives!
Last edited by Tannin on Sun Mar 30, 2014 8:28 pm; edited 1 time in total |
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stui magpie
Prepare for the worst, hope for the best.
Joined: 03 May 2005
Location: In flagrante delicto
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| Tannin wrote: | The current law has been in place for 20 years.
I challenge you to provide even a single example of speech which it has unfairly prevented, and which would be rightfully legal under a new law. Go on, show us what things you think are illegitimately proscribed and need to be added into public discourse. Then we can judge them for what they are worth. |
Are you positive about the 20 years? I had the impression that section of the act was amended under Gillard?
_________________
Every dead body on Mt Everest was once a highly motivated person, so maybe just calm the **** down. |
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Tannin
Can't remember
Joined: 06 Aug 2006
Location: Huon Valley Tasmania
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Actually, Stui, it isn't 20 years, it's 19 years and some-odd months. It was enacted by (from memory) Keating (possibly Hawke), and John Howard himself was sufficiently satisfied that he did not attempt to change it, not even when he had absolute control of the Senate as well as the House. I'm not aware of any changes to it under Gillard; if there were some they must have been pretty minor as no-one seems to think they have been worth mentioning.
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�Let's eat Grandma.� Commas save lives! |
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stui magpie
Prepare for the worst, hope for the best.
Joined: 03 May 2005
Location: In flagrante delicto
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I came back to edit, I did some checking on comlaw.gov.au and it seems the wording has been ion place well prior to Gillard, so no issues there.
My take on the situation is that the Bolt decision was an example of a judge using legislation in a way that the writers didn't intend, and legislation should evolve based on judges decisions. If a judge makes a ruling that the government thinks is wrong, change the legislation to make it clearer.
There may not have been many situations in the last 20 years that have been wrong,, but this decision creates a precedent that could likely lead to several.
Going back to the point of the article, the writer has tried to strike a balance between "hate" speech and free speech. My thoughts are it's more the one one one situations that need some protection, wheras you should be free to publish what you like and be hung on your own stupidity.
In fact, now that I think about it, the on on one aspect of the Racial Discrimination act could be capably dealt with under the various state and federal bullying legislation.
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Every dead body on Mt Everest was once a highly motivated person, so maybe just calm the **** down. |
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David
I dare you to try
Joined: 27 Jul 2003
Location: Andromeda
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| Tannin wrote: | Oh, read your own post, David. As you yourself just said - apparently without bothering to read and understand what you wrote and quoted, What could, according to the letter of the law, be penalised?
Nothing "said or done reasonably and in good faith" which is "an expression of a genuine belief held by the person making the comment" on "any event or matter of public interest".
In other words, all reasonable, genuine, honest comment on any matter of public interest is already protected as free speech.
I repeat: provide an example of some speech that you wish was legal which is currently illegal. Any example. So far, you have failed miserably in this task - the very first task you must complete if your bizarre quest in support of the unsupportable is to have even a tiny shred of credibility.
(Hint: as your own words have already demonstrated, this example will have to be speech which is dishonest, non-genuine, and made in bad faith, as the law already allows any honest and genuine remark made in good faith.
Remember, according to the law we have and have had for 20 years, Nothing "said or done reasonably and in good faith" which is "an expression of a genuine belief held by the person making the comment" on "any event or matter of public interest" is illegal. So what exactly ar you proposing to change? |
Admittedly, that caveat does seem to cover most potential objections. Though the restrictions faced by Toben in the final ruling (I'm not sure whether Bolt has been subjected to similar conditions) do seem fairly extensive. If I understand correctly, he's been essentially banned from writing or publishing any material which might suggest that the Holocaust has been exaggerated or made up. No mention of being permitted to do it so long as it's in "good faith".
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All watched over by machines of loving grace |
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Wokko 
Come and take it.
Joined: 04 Oct 2005
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It doesn't cover the objection of a government not infringing upon the right of free speech. It's a right not a need. Many in this country just don't understand what human rights are, and wont unless they get so far eroded that we look like China.
And to say it can't happen here, it happened in the States, even with their First amendment with the anti Communist witch hunts in the 50s. For now it's racial speech, but what will be offensive tomorrow? Removing laws regarding restriction of basic human rights isn't about a specific issue, it's about not allowing governments to dictate citizens actions in the absence of violence or force from said citizens.
All threatening behaviour, abuse, disturbing the peace and violence is covered by other more relevant laws. My rights don't end where your feelings begin. |
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David
I dare you to try
Joined: 27 Jul 2003
Location: Andromeda
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Tannin, another interesting point might be to turn the question around: what will actually be permitted if 18C will be repealed? What can't you say now that you will be able to say?
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