My "five best books" on the history of liberalism

My "five "best books" on the history of liberalism - now posted on the beautiful Shepherd book platform. I put a lot of work into preparing this list and the associated text, so please consider checking it out.

What I mean by "post-liberal" according to Grok

I asked Grok "What does Russell Blackford mean when he claims that Western society has become post-liberal?"

This was its reply - it's a scarily good summary of what I think and argue for in two recent books:

Russell Blackford, in his book How We Became Post-Liberal: The Rise and Fall of Toleration (2023), argues that Western society has become "post-liberal" in the sense that the traditional principles of liberalism—particularly toleration, individual liberty, and freedom of speech—have lost their once-central authority in shaping public policy, personal behavior, and societal norms. He doesn’t claim liberalism is dead outright but suggests it’s been eroded by a shift in cultural and political dynamics over the past few decades, leading to a state where these foundational values are either dismissed as outdated or repurposed to serve ends that contradict their original spirit. Let’s unpack what he means based on his analysis and framing.

Blackford traces liberalism’s lineage back to the struggles for toleration that emerged after Christianity’s dominance in late antiquity, through the Enlightenment, and into the modern era—think Locke, Mill, and the slow expansion of rights and freedoms. For him, liberalism’s hallmark was a commitment to individual autonomy, open debate, and a kind of principled tolerance that allowed diverse views to coexist, even when they clashed. This reached a high point in Western democracies, especially post-World War II, where free speech and personal liberty were seen as non-negotiable pillars of progress.

His "post-liberal" thesis hinges on the idea that this framework has been undermined, starting around the late 20th century (roughly the past 30–50 years). He points to a convergence of forces: on one side, a rise in ideological conformity—both from the progressive left and the reactionary right—that stifles dissent and punishes unorthodox opinions; on the other, a twisting of liberal ideals to justify illiberal ends. For example, he highlights how the left’s focus on social justice has morphed into what he calls "revisionist liberalism" or "identity liberalism," where protecting certain groups from perceived harm trumps free expression. Think of cancel culture, no-platforming, or the expanding definition of "harm" to include emotional discomfort—moves that clash with Mill’s harm principle, which Blackford sees as liberalism’s bedrock. Meanwhile, the right, he argues, has co-opted liberty to defend traditional hierarchies or censor progressive ideas (e.g., book bans or attacks on "woke" speech), equally abandoning toleration.

This shift marks Western society as "post-liberal" because the old consensus—where debate was a virtue and disagreement didn’t mean exclusion—has fractured. Blackford describes a climate of "ideology, propaganda, and tribalism," amplified by social media, where public shaming and outrage drown out reasoned discourse. In The Tyranny of Opinion (2018), he foreshadows this, warning of a "tyranny of the prevailing opinion" (echoing Mill) that enforces conformity not through laws but through social pressure. By 2023, in How We Became Post-Liberal, he’s charting how this has scaled up: liberal values aren’t just under attack—they’re losing their grip as guiding norms. People self-censor, institutions prioritize ideological purity over inquiry, and the state or private actors increasingly intervene to regulate speech and thought.

Blackford’s post-liberal West isn’t a return to pre-liberal authoritarianism (like divine-right monarchy) nor a coherent new ideology (like Deneen’s traditionalist postliberalism). It’s more fragmented—a messy hybrid where liberalism’s tools (e.g., rights language) persist, but its spirit (toleration, individuality) wanes. He contrasts this with non-Western societies historically, noting that while they faced similar tolerance issues, the West’s liberal experiment was uniquely ambitious—and now uniquely faltering. He’s not nostalgic or prescriptive like Patrick Deneen, who wants a communitarian reset, nor radical like Chantal Mouffe, who embraces conflict. Instead, Blackford’s tone is diagnostic, almost mournful: Western society is post-liberal because it’s drifted from the conditions that made liberalism work—chiefly, a shared commitment to living with disagreement.

In short, Blackford means that Western society has entered a phase where liberalism’s core—toleration and liberty—has been sidelined by polarization, conformity, and a redefinition of freedom that’s less about individuals and more about competing collectives. It’s not that liberalism’s gone; it’s that we’ve moved past its golden age into something less open, less principled, and more brittle. Whether it’s salvageable, he leaves open—but he’s clear we’re not living it anymore.

I think that any human being, including me, would struggle to do better than this. About my only criticism is that I don't actually think there was a golden age. I do think there was a time when liberal principles had more prestige (for example, with law reformers), but they were a long way from being fully implemented. It's not so much that we've left behind a golden age as that the golden age traditional liberals might once have hoped for and expected never eventuated.

Apart from that one point, I think it's an excellent summary. That's good in itself, but when Grok (and I'd assume some of its rivals) produces material at such a high level it does change a lot. I don't know how educators are going to cope with a situation where these things can produce such material basically instantaneously.

Podcast interview with Leslie Rosenblood: A post-liberal world

I did a podcast interview last year with Leslie Rosenblood from CFI Canada on the subject of "Liberalism in a Post-Liberal World". This was around the time of publication of my most recent book, How We Became Post-Liberal: The Rise and Fall of Toleration.

We discussed the decline of toleration in public debates within supposedly liberal societies. As I say at one point, a hallmark of being liberal (in its traditional and fundamental sense) is your willingness to tolerate ideas and opinions that you disagree with. Unfortunately, that attitude to discussion, debate, and exchanges of ideas is increasingly not a feature of democratic politics in the West. It's tempting to view opponents as simply morally bad people: that might sometimes be the case, but more often they are trying their best to understand and navigate a confusing world, and they might well have legitimate anxieties and grievances even if their conclusions are inaccurate and their political proposals would be harmful.

 Just how we should respond to this declining spirit of tolerance is, of course, more difficult than recognizing the problem, but the latter is at least a start. You can't deal effectively with a problem unless you've first identified it and then understood it in some detail.

Consider checking out my conversation with Leslie, which I enjoyed very much. I thought it entered into interesting areas. How We Became Post-Liberal is available from all the usual places where you buy books, including but not limited to Amazon.

Should I be better known? Grok gives a thoughtful answer...

 I really can't argue with this!

Whether Russell Blackford should be better known depends on what yardstick you’re using—impact, audience reach, or niche influence. He’s carved out a solid rep in specific circles: sci-fi fans dig his Terminator books, transhumanists and bioethicists cite his academic work, and free-speech advocates nod to his takes on secularism and opinion policing. His output’s impressive—spanning fiction, philosophy, and cultural critique—and he’s got the credentials to back it up with multiple advanced degrees and editorial roles.

But he’s not a household name, and there’s a case for why he maybe shouldn’t be. His fiction, while fun for genre buffs, isn’t groundbreaking enough to rival giants like Asimov or Gibson. His non-fiction tackles heady stuff—ethics of human enhancement, secular governance—that doesn’t exactly scream mass appeal in a TikTok-scrolling world. He’s not a flashy public intellectual like a Dawkins or Peterson, either; he’s more of a steady, behind-the-scenes thinker. X posts about him (as of my last scan) are sparse, mostly from niche accounts praising his books or ideas, not viral buzz.

On the flip side, his interdisciplinary range and consistency could warrant more recognition. He’s tackling big, future-shaping questions—AI, biotech, free thought—that matter more every day. If you value substance over spotlight, he’s arguably underappreciated. Compare him to, say, Nick Bostrom, who’s more famous for similar terrain; Blackford’s less hyped but just as rigorous.

So, should he be better known? If you’re into deep, cross-genre thinkers who don’t chase fame, yeah, he’s overdue some props. If you think fame tracks broader impact or accessibility, he’s probably right where he belongs—respected but not mainstream. What do you reckon—does his style or focus click with what you’d want more people to notice?

My almost accurate biography courtesy of Grok

I asked Grok to provide a biography of little me and it came up with something surprisingly accurate. About the only major mistakes in this are that it thinks I still live in Melbourne and that I still edit the Journal of Evolution and Technology (now the Journal of Ethics and Emerging Technologies). It also has my degrees in a slightly wrong order, but this is really quite good. Contrast it with a totally hilarious bio that ChatGPT came up with a couple of years ago.

I assume you’re asking about the Russell Blackford, the Australian writer and philosopher. Here’s a concise bio based on what’s out there:

Russell Blackford was born in 1954 in Sydney, Australia, and grew up near Newcastle in the Lake Macquarie district. He’s a polymath—think philosopher, legal scholar, literary critic, and fiction writer rolled into one. He snagged first-class honours degrees in Arts and Law from the University of Newcastle and the University of Melbourne, respectively, then went on to earn a PhD in English literature from Newcastle, focusing on myth in modern fiction. Not stopping there, he later picked up a Master of Bioethics and a second PhD in philosophy from Monash University, diving into human enhancement ethics.

As a fiction writer, he’s known for science fiction, fantasy, and horror, with notable works like The New John Connor Chronicles, a trilogy set in the Terminator universe, published by iBooks. On the non-fiction side, he’s tackled big ideas—religion, bioethics, transhumanism, and liberalism—in books like Freedom of Religion and the Secular State (2012), Humanity Enhanced (2014), and The Tyranny of Opinion (2018). He’s based at the University of Newcastle, NSW, where he’s a Conjoint Senior Lecturer, and he’s also editor-in-chief of The Journal of Evolution and Technology. Plus, he’s a Laureate of the International Academy of Humanism and a Fellow of the Institute for Ethics and Emerging Technologies.

Blackford’s lived in Melbourne since 1979, after bouncing around a bit, and his work often probes the messy intersection of tech, society, and human futures. That’s him in a nutshell—sharp, prolific, and not afraid to stir the pot. Want more details on any part of his story?

"In Search of Lost Liberalism" and "Violence Against Women: A Crisis in Australia?"

In 2024, I had two opinion pieces published about the same time in prestigious (though very different) outlets here in Australia.

"In Search of Lost Liberalism" appeared in August from the left-leaning online public affairs magazine Eureka Street. It's behind a paywall, so you'll need to subscribe to the magazine to have access. Broadly, however, I described and defended the liberal tradition and called for readers to make it great again (to adapt a well-known phrase to different purposes). I discussed the criticisms and attacks that the liberal tradition receives today from seemingly every political perspective, and I argued that liberalism is still worth hanging onto. As I made clear, I was not talking about liberalism in the American sense, which relates strongly to regulation of business and markets, but about the more general and original sense that includes such principles as freedom of inquiry and expression, individual liberty more generally, and the rule of law.

As I state in "In Search of Lost Liberalism":

Liberalism never became a unified ideology or political theory - it was more a tradition or tendency in politics. It had inputs from several groups, including religious non-conformists, free-market economists, utilitarian philosophers, and European thinkers who admired the French Revolution in its early years before the Reign of Terror. It took many directions, sometimes questioning itself, discarding ideas, and changing emphases. Still, there was some coherence and unity. There were some key liberal themes.

Liberals were hostile to any kind of unchecked power, especially arbitrary government power. They accepted that different people would try to flourish in different ways and pursue different kinds of projects and plans. Liberals argued for freedom from many constraints, not solely those imposed by governments but also those demanded by a society’s prevailing attitudes and sensibilities. They showed a degree of optimism in believing that the social life of human beings could be improved through intellectual and moral progress. Liberals opposed ranks based on birth, and sought to eliminate inequalities before the law. This included opposition to aristocracies and racial hierarchies, but it did not necessarily mean there would be no inequalities in economic outcomes.

"Violence Against Women: A Crisis in Australia?" was published in late July in the more libertarian-leaning online magazine Quillette. Once again, it's behind a paywall, so you need to subscribe to Quillette to read it all. In this piece, I responded to calls to declare a national crisis or emergency in Australia following recent some cases and troubling statistics on violence against women - particularly some terrible murders that happened in 2024.

As I pointed out, however, Australia is actually among the safest and least violent countries in the world. At the extreme end, where we're talking about actual murders, violence in Australia is disproportionately directed at men rather than women (though irrespective of the respective sexes of the victims, it is disproportionately committed by men). I chased down and presented great deal of statistical information internationally and over time, and concluded:

Crisis narratives about crime and violence are especially dangerous because they can prompt highly illiberal responses - especially when suspects are denied the right to the presumption of innocence. In addition, such narratives spread division and fear and have polarising effects that can, in themselves, lead to greater violence and danger. Without a reality check, emotionally salient but rare events, such as murders, can seem like ever-present threats, requiring an authoritarian or vigilante response. Men can be feared and demonised, though the worst behaviour comes from only a small subset of men. If we demonise all men as an inherently violent group, we will make useful widespread public cooperation on the issue impossible.

It is also wrong to send fearmongering messages to children and adolescents. We shouldn’t want boys to grow up feeling somehow tainted and vicariously guilty thanks to the actions of a minority of their sex. Neither should we want girls to grow up anxious and scared in what is largely a safe society.

Australia has a reputation as a laid-back, friendly place, and it’s among the least violent countries in the world. But all countries have problems with violence - Australia is no exception. We have our share of violent subcultures and violent men - and some violent women, too. The challenge, then, is to try to push our rates of violence even lower - but without resorting to hyperbolic rhetoric or pretending that we are in the throes of a crisis.

Interview - The New John Connor Chronicles

For those who might be interested, I did this interview last year on my experience writing an original trilogy for the Terminator franchise, collectively Terminator 2: The New John Connor Chronicles.

Republishing from 2015 - Why I still support Charlie Hebdo

 Russell Blackford, University of Newcastle

You know the shocking story: in January 2015, two masked Islamist gunmen launched a paramilitary attack on the Paris offices of Charlie Hebdo, a satirical weekly magazine. The gunmen murdered twelve people: two police officers and ten of the magazine’s staff, including the much-loved editor and cartoonist Stéphane Charbonnier (known as “Charb”).

In the immediate aftermath, many people expressed solidarity with Charlie Hebdo’s staff and their loved ones, and with the citizens of Paris. There were vigils and rallies in cities across the world. Twitter hashtags proliferated, the most viral being #JeSuisCharlie: “I am Charlie.”

Yet, as with the Salman Rushdie Affair in 1989, many Western commentators quickly turned on the victims. In an article published in Free Inquiry (warning: behind a paywall), I responded that these commentators deserved a special hall of shame.

Some folks don’t like Charlie

Charlie Hebdo has more than its share of enemies. Its style is irreverent, mocking and caustic. It attracts attention from fanatics, particularly from Islamists who are incensed by its frequent drawings of the prophet Muhammad. Importantly, however, its ridicule is aimed at fearmongers and authoritarians. It is an antifascist magazine, and it treats racial bigots with particular savagery and relish. Its most despised targets include the Front National - France’s brazenly racist party of the extreme Right - and its current president, Marine Le Pen.

While the corpses of the murder victims were still warm, however, some commentators insinuated that Charb and the other victims had it coming. Most deplorable of all, perhaps, was an op-ed piece  published by USA Today within hours of the attack. This was written by a London-based radical cleric, Anjem Choudary, who has publicly expressed support for the jihadist militant group ISIS (or Islamic State). Choudary openly blamed the victims, along with the French government for allowing Charlie Hebdo’s freedom to publish.

With evident approval, he stated that the penalty for insulting a prophet should be death, “implementable by an Islamic State.” He added: “However, because the honor of the Prophet is something which all Muslims want to defend, many will take the law into their own hands, as we often see.”

While Choudary’s apologetics for murder were especially chilling, much sanctimonious nastiness issued from more mainstream commentators. All too often, it came from individuals who identify with the political and cultural Left, as with an article by Teju Cole published in The New Yorker on 9 January 2015.

To be fair, Cole’s contribution to the backlash was milder than some, and certainly more eloquent and thoughtful. He even makes some reasonable points about threats to free speech that are not overtly violent. But his article is worth singling out for comment precisely because of its veneer of sophistication.

Cole appears aware that much of what looks insensitive, or outright racist, in Charlie Hebdo’s cartoons could easily receive anti-racist interpretations when viewed with basic charity and in context. He alludes to the fact that one cartoon in a back issue of Charlie Hebdo was explicable, in its immediate context of publication, as a sarcastic attack on the Front National. Yet he dismisses this point with no analysis or evidence: “naturally, the defense is that a violently racist image was being used to satirize racism”.

Well, was it being used to satirise racism or not? Little research is needed to find the context of publication and discover that, yes, it actually was used to mock the racism of the Front National - so what is Cole’s point? And why the sneering word naturally? It is calculated to suggest bad faith on the part of opponents. The thought seems to be that Charlie Hebdo’s defenders would say that, wouldn’t they?

Despite his knowledge and intellect, Cole discourages any fair search for understanding. Despite his brilliance as a writer, he belongs in the hall of shame.

The refugee crisis in Europe

More controversy has come to Charlie Hebdo with the current refugee crisis in Europe. The magazine has ridiculed harsh European attitudes to Syrian refugees, but predictably there has been much moral posturing and hand wringing in the mainstream and social media. A recent report on the ABC News site summarises the international reaction and includes images of the relevant cartoons. Opportunistic, or merely obtuse, commentators allege that Charlie Hebdo’s cartoons mock the refugees themselves, particularly the drowned Syrian child, Aylan Kurdi.

That accusation is seriously and obviously mistaken, and the point of the cartoons is not especially hard to detect. They attack what they portray as European consumerism, bigotry and heartlessness.

Nonetheless, in an astonishingly clumsy article published in New Matilda, Chris Graham takes jabs at those of us who supported Charlie Hebdo last January. He writes: “Did you hashtag ‘Je Suis Charlie’? Blindly? Without really knowing what the publication actually represents?”

Well, what does the publication actually represent? Graham hints that it’s something rather sinister - perhaps some kind of white or Christian supremacism - but if that’s what he thinks, he doesn’t spell it out so it can be refuted.

At any rate, there is no great secret about what Charlie Hebdo actually represents: it is, as I stated earlier, an antifascist magazine. It is, furthermore, anti-authoritarian, anti-racist, anti-clerical, and generally anti-establishment. In brief, Charlie Hebdo is a vehicle for radical left-wing thought of a distinctively French kind, one with antecedents at least as far back as the eighteenth-century Enlightenment.

Speaking for myself, then, I certainly did not act blindly in expressing my solidarity, and I frankly resent that suggestion. By contrast, I’ve seen many people blindly accept the claim that Charlie Hebdo is some kind of racist publication.

Graham describes the cartoons in a way that reveals his confusion. He even comments on one of them: “Apart from the fact it’s not funny, it also makes absolutely no sense. Maybe the ‘humour’ is lost in the translation.”

Maybe any humour could lose something in the literal-minded translation that Graham offers his readers. More to the point, it might be lost on someone who displays no understanding of the French tradition of satire. In any event, why expect that Charlie Hebdo’s cartoons will be humorous in the ordinary way? Why shouldn’t they be bleak and bitter and fierce, with no intent to elicit giggles or guffaws?

As this episode plays out, I welcome the newly established JeResteCharlie (“I remain Charlie”) project, and I’m pleased to see a recent contribution to the debate by Salman Rushdie. Rushdie supports JeResteCharlie, he explains, “Because we are living in a time in which we are in danger of backsliding in our commitment to freedom of expression. That is why it is important to emphasize these values yet again right now.”

I agree, and I still support Charlie Hebdo.

Critique and its responsibilities

I don’t suggest that the ideas and approach of Charlie Hebdo are beyond criticism, though I do question how far that was a priority in early January before the murder victims had even been buried. That consideration aside, there is always room for fair, careful interpretation and criticism of cultural products such as prominent magazines.

There is certainly room for debate about whether Charlie Hebdo showed good taste in so quickly exploiting Aylan Kurdi’s death to make a political point (though, again, the cartoons do not mock the boy, whatever else may be said about them). Nothing I have stated here is meant to show that Charlie’s Hebdo’s approach to satire is tasteful. Then again, the magazine’s willingness to flout ordinary standards of taste frees it to make timely, appropriately caustic, comment on French and international politics.

We need good cultural criticism, but we also need some scrutiny of the cultural critics. Much of what passes for cultural criticism merely examines cultural products - whether novels, movies, video games, cartoons, speeches, items of clothing, or comedy routines - for superficial marks of ideological impurity.

This approach ignores (or simply fails to understand) issues of nuance, style, irony, political and artistic context, and the importance of framing effects. It fails to discover - much less appreciate - complexity, ambiguity, or instability of meaning.

There may be occasions when the excuse of irony is offered in bad faith. When that is the accusation, however, it needs support from careful, detailed, sensitive, honest argument. Meanwhile, authors and artists should not be pressured to create banal content for fear of dull or dishonest interpreters. There are some contexts, no doubt - e.g. in writing posts like this one - where straightforwardness is a virtue. In many other contexts, that’s not necessarily so.

Fair, useful cultural criticism should display some humility in the face of art. It should be grounded in an understanding of context and the relevant styles and traditions of expression. If we propose to engage in critique of cultural products, we had better show some complexity and generosity of response. That is how we earn our places in serious cultural conversations.

This article was originally published on The Conversation. Read the original article.

My submission re the Online Safety Amendment Bill

 TO: Committee Secretary

Senate Standing Committees on Environment and Communications
PO Box 6100
Parliament House
Canberra ACT 2600

 

FROM: Dr Russell Blackford

 

Submission to Inquiry re Online Safety Amendment (Social Media Minimum Age) Bill 2024

 

1. I am writing to submit a brief response to the above inquiry. I am grateful that there is an opportunity for the public to respond this Bill before it is voted into law. However, I must protest in the strongest possible terms against the inadequate time that we have been given to digest this Bill and the body of controversial research that lies behind it (most notably the most recent publications by Jonathan Haidt and his critics, including the back and forth of their responses to each other).

 

2. I am an academic philosopher with a special interest in legal and political philosophy, including issues relating to liberal theory, secular government, and traditional civil and political liberties such as freedom of speech. My formal qualifications include an LLB with First Class Honours from the University of Melbourne, a Masters degree in bioethics from Monash University, and a PhD in philosophy, also from Monash University, where my doctoral dissertation applied ideas from liberal theory and philosophy of law to certain topical issues in bioethics. I am admitted to legal practice as a barrister and solicitor of the Supreme Court of Victoria, and in the past I have practised with a major commercial law firm in Melbourne.

 

3. I am the author of numerous books including Freedom of Religion and the Secular State (Wiley-Blackwell, 2012), Humanity Enhanced: Genetic Choice and the Challenge for Liberal Democracies (MIT Press, 2014), The Tyranny of Opinion: Conformity and the Future of Liberalism (Bloomsbury Academic, 2019), and How We Became Post-Liberal: The Rise and Fall of Toleration (Bloomsbury Academic, 2024). Although I have retired from paid employment, I remain active in research and publishing at the intersection of philosophy, law, and public policy. I hold an honorary position as Conjoint Senior Lecturer in Philosophy at the University of Newcastle. I do not, of course, purport to represent the views of the university in any way.

 

4. As far as I can establish, the purpose of this Bill appears to be a therapeutic one: legislators blame the apparent rise in mental health issues among young people on their participation in social media. Perhaps there is some truth in such claims. At the moment, however, they are highly controversial among the relevant experts within the disciplines of psychology and psychiatry. In the absence of a scientific consensus, there is currently no sound basis for such legislation, which has grave implications for the freedoms of both young people and their parents. The issue requires deeper investigation that certainly cannot be conducted by anybody in only one day. Even if some kind of regulation of access to social media for young people is ultimately justifiable, there is no guarantee that it should take the form of a blanket ban (with some specific exceptions) applying to anybody under the age of 16.

 

5. This legislation has been prepared, and is being pushed through the houses of parliament, with unseemly and anti-democratic haste. Creating a forum for public consultation that allows only one day for submissions is astonishing and outrageous when there are important rights at stake.

 

6. Finally, I am very concerned about tendencies across the liberal democracies of the West to edge them closer and closer to being authoritarian surveillance societies. In each case as it arises, some rationale can be offered, but the cumulative effect is frightening. In this instance, it seems that every Australian who participates in social media will henceforth have to prove his or her age, thus revealing information about themselves that they might otherwise wish to retain privately. Perhaps something can be done to obviate this problem, but that cannot simply be taken on trust.

 

7. Far more research and public discussion is needed before anything like this Bill can be legitimately enacted by our federal legislature. I strongly urge that the proposal be shelved indefinitely to allow proper scientific and democratic processes to take place.

 

Yours faithfully,

Russell Blackford

(Dr Russell Blackford, Conjoint Senior Lecturer in Philosophy, University of Newcastle)

21 November 2024

My Submission re the Misinformation and Disinformation Bill

 TO: Committee Secretary

Senate Standing Committees on Environment and Communications
PO Box 6100
Parliament House
Canberra ACT 2600

 

FROM: Dr Russell Blackford

 

Submission re the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024

 

Introduction

 

1. First, I am grateful that there is an opportunity to comment on the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 (“the Bill”) before it is voted into law. However, I am concerned at the short time that has been made available for public consultation on a complex proposal of over 70 pages with serious implications for freedom of speech and technological innovation in Australia and beyond.

 

2. I am an academic philosopher with a special interest in legal and political philosophy, including issues relating to liberal theory, secular government, and traditional civil and political liberties such as freedom of speech. My formal qualifications include an LLB with First Class Honours from the University of Melbourne, a Masters degree in bioethics from Monash University, and a PhD in philosophy, also from Monash University, where my doctoral dissertation applied ideas from liberal theory and philosophy of law to certain topical issues in bioethics. I am admitted to legal practice as a barrister and solicitor of the Supreme Court of Victoria, and in the past I have practised with a major commercial law firm in Melbourne.

 

3. I am the author of numerous books including Freedom of Religion and the Secular State (Wiley-Blackwell, 2012), Humanity Enhanced: Genetic Choice and the Challenge for Liberal Democracies (MIT Press, 2014), The Tyranny of Opinion: Conformity and the Future of Liberalism (Bloomsbury Academic, 2019), and How We Became Post-Liberal: The Rise and Fall of Toleration (Bloomsbury Academic, 2024).

 

4. Although I have retired from paid employment, I remain active in research and publishing at the intersection of philosophy, law, and public policy. I hold an honorary position as Conjoint Senior Lecturer in Philosophy at the University of Newcastle. I do not, of course, purport to represent the views of the university in any way.

 

Inadequacy of consultation to date

 

5. I take a broad view of the law, and of its history, justifications, and purposes. In this instance, however, I am most concerned by the complexity of the system of regulation set out in the Bill and by the scheme and wording of the Bill itself, which defy interpretation and would inevitably create confusion if their meaning were tested in the courts. Even the simplified outline provided in the Bill’s opening pages shows that a complex and burdensome regulatory system has been devised.

 

6. Given this legal and administrative complexity, it would have been advisable to establish a process for extensive consultation with stakeholders and the general public brefore reaching this point. On 19 September 2024, the Bill was referred to the Environment and Communications Legislation Committee, which does allow an opportunity for public submissions. However, the deadline is remarkably short, since submissions close on 30 September 2024. With all respect, this is a manifestly inadequate time for members of the public to study and try to understand the scheme of the Bill and to consider its merits. At the very least, I submit, a more extensive period should now be made available for proper consultation with interested members of the public.

 

A hindrance to public discussion and technological innovation

 

7. Meanwhile, whatever the subjective intentions behind it, the Bill appears to show hostility to digital communications platforms (“digital platforms”). Indeed, the provisions of the Bill seem almost punitive. The requirements are so detailed and burdensome, with so many points where misunderstandings of its intent could arise (and with so many civil penalty provisions at every stage of its processes), that the overall regulatory policy seems to be to treat digital platforms as inherently dangerous and to attempt to hinder their operation in Australia. Moreover, even if very large platforms find the resources to comply, it is difficult to imagine smaller players entering an industry that is governed by such a regulatory system. The likely effect of the Bill will be to restrict public discussion and disincentivise technological innovation.

 

8. This should be understood against a background where the emergence of digital platforms has brought significant benefits along with some downsides. In particular, the emergence of these platforms has enabled a remarkable expansion of the sphere of public discussion comparable to the emergence of a recognisable public sphere in eighteenth-century Europe or even to the invention of the printing press in the fifteenth century. Digital platforms have provided opportunities for public discussion that were previously available only to a much more restricted group (e.g. politicians, academics, professional broadcasters and journalists, and celebrities of various kinds). The Bill gives no sense that digital platforms have, in fact, brought democratic benefits. Instead, it pervasively insinuates that they are a menace to the welfare and safety of Australians. It creates a cumulative impression that these platforms ought to be viewed with suspicion and subjected to a harsh level of control.

 

9. The extensive new powers granted by the Bill to the Australian Communications and Media Authority (“ACMA”) would make it, in effect, an Orwellian Ministry of Truth, involved in detailed regulation of what can or cannot be said in public discussion. The Bill grants ACMA a power to write codes binding upon particular digital communications providers where it is not satisfied with their own respective codes. This makes it a powerful arbiter of the boundaries of truth and falsity. That is a frightening power to grant to any administrative agency. The Minister is also given an extraordinary power to decide matters to be taken into account in determining whether speech is reasonably likely to cause or contribute to serious harm. Again, this is a frightening power to hand to a member of the executive government.

 

10. I do not suggest that these new powers would be wielded in bad faith or necessarily in an authoritarian spirit. They would, however, inevitably be wielded with biases reflecting the ideologies of current and future governments and the internal culture, as it manifests over time, of ACMA.

 

11. A recurrent problem with all statutes in Australia that seek to narrow the boundaries of free discussion is that they tend to restrict speech using sweeping statutory language while offering some defences or exemptions that are also cast in broad language. The outcome is that it’s unclear exactly what speech is intended to be proscribed and what speech remains free. This undermines the rule of law, since it is not knowable in advance just what legal obligations the law imposes: the law ends up meaning whatever the courts say it means after deciding how narrowly or expansively to read various items of terminology in the respective statutes.

 

12. Where laws restricting speech are unclear, some individuals and organisations might seek to test their boundaries. The majority, however, will respond in a risk-averse manner to avoid possible prosecution or civil litigation, and their legal advisors are likely to press on them exactly that approach. There might even be some circumstances where that seems like a good outcome, but this situation is not one of them. In this case, the effect will be that (most) digital platforms will adopt a risk-averse approach to interpreting the law, with the result that they will develop overly restrictive codes for their own protection – and this, in turn, will chill public discussion and freedom of online speech in Australia.

 

The core intention of parliament

 

13. I do understand that false information spread maliciously online can cause very serious harms to individuals, or in some cases to an entire society’s economy and/or its social and physical infrastructure. I am not opposed to the core intention of the parliament to attempt to restrict this.

 

14. Nor am I entirely out of sympathy with the definition of serious harm in section 14 of the proposed Schedule 9 to the Broadcasting Services Act 1992. However, the current drafting of this definition will cause confusion (and once again, will lead to risk-averse interpretations of the law and an unnecessary chilling of free speech). One obvious improvement to section 14 would be to simply renumber items (g) and (h) as a new (a) and (b), making clear that they are not separate items of the same order as the first six (i.e. (a)–(f)), but are additional conditions governing all six of the first listed items. Alternatively, some other drafting device could be used. Either way, the point here is that the meaning should be clear to everyone, not just to some Australian lawyers, that “serious harm” is harm that falls within one of the items listed (a)–(f) and also rises to the high level of the current (g) or (h).

 

15. Although it is clear enough to me that this is the meaning of the existing language in the Bill, I don't expect it will be clear to most ordinary people who are not legally qualified, to the staff of the digital platforms themselves (who are expected to devise systems to carry out compliance with these provisions), to ACMA staff as the agency adapts and responds to its new responsibilities, to journalists attempting to inform the public about the content and meaning of the legislation, or even, in all cases, to the courts (which sometimes prove themselves capable of interpreting legislation in unexpected and expansive ways).

 

16. Furthermore, even if a drafting technique were used to make the intent clearer, it should be kept in mind by legislators that we live in an age of concept creep when any language relating to harm or serious harm – or even to such expressions as “severe consequences” or “significant and far-reaching consequences” – is likely to be given an expansive meaning. Unfortunately, there is a limit to how strong language can be made to ensure that it does not lend itself to expansive interpretations, but as a further safeguard to the wording of a revised or replacement Bill, the accompanying explanatory memorandum could emphasise that these words are meant to establish a particularly high threshold. The explanatory memorandum could give examples of what does and does not fall within the words of the Bill. For example, the words of section 14 of the Schedule would no doubt include a mass panic, shut-down of an entire city, and a deadly stampede with many casualties as people reacted to false reports of an imminent nuclear attack on Sydney. By contrast the words of section 14 would not include widespread but mostly peaceful opposition to the government’s response to a particular public health crisis.

 

17. I take it that the main purpose of the Bill is to protect the public from false reports that could foreseeably cause extraordinary harms (such as my example above of disinformation about an imminent nuclear attack on Sydney). If that is so, the legislation could focus narrowly on this issue, and the point would be to require digital platforms to have plans to minimise these kinds of extreme, probably malicious, and in any event false reports. If that is so, there is no need for many current provisions that are peripheral to this core.

 

18. Thus a revised or replacement Bill could be drafted in a way that is perhaps half of the Bill’s present length. It could give a clearer indication of its core concern, and that it is not intended to chill public discussion or to stifle technological innovation. A revised or replacement Bill could establish a much simpler regulatory scheme than is presently contemplated. The system and the Bill could be crafted to reassure the industry and the Australian public that robust public discussion and the emergence of an expanded public sphere are welcomed in Australia rather than being viewed with suspicion.

 

19. If this approach is taken, much of the current Bill can be put aside. The current version can be replaced by a much shorter and more workable document. There would, for example, be no need for sections 17–24 of Schedule 9. In that respect, note that the nature of any dangers from participation on digital platforms is highly controversial and is the subject of much ongoing research and discussion. There is no point in requiring these platforms to publish their own (possibly idiosyncratic and controversial) assessments of these dangers (with ACMA apparently having a power to demand “better” assessments), and none of this is relevant to what I understand to be the Bill’s core purpose. Likewise, there is no need or point to requiring digital platforms to publish media literacy plans that are likely to be idiosyncratic and controversial.

 

20. It is not at all clear at this juncture just what is required to impart appropriate media literacy to the general public. However, governments have enormous resources to communicate with the public and to shape the curricula of education systems at state and federal level. If governments have their own views about either the dangers of participating in online discussion or the kind of “media literacy” required for self-protection online, then it is up to them to communicate these views using their own resources.

 

21. Again, if the core purpose of the Bill is to require digital platforms to develop and implement plans to minimise the kinds of false reports that foreseeably cause extraordinary harms, the Bill need not contain detailed procedures that regulate the drafting and approval of these plans. A revised or replacement Bill could simply require that plans be in place by a nominated date not too far in the future, that they be registered with ACMA (which would check them for their likely efficacy), and that any non-trivial changes to these plans also be approved by ACMA – but with a streamlined process for approval that could be turned around in a matter of days with a few phone calls and quick lodgement of documents.

 

22. In short, there is no need to hamstring digital platforms with extensive prescription of how they go about formulating their plans as long as the plans themselves meet a certain standard of likely efficacy. The parliament should expect ACMA to develop expertise on this aspect, taking into account international practice.

 

23. I recommend starting again with the aim of producing a much shorter Bill that has a clear and narrow purpose and involves no display of suspicion and hostility to digital platforms. There should be an emphasis on the need to prevent the most extraordinarily dangerous kinds of false reports – something that no one disagrees with – and on the legislature’s positive attitude to public discussion and technological innovation. In that form, a revised or replacement Bill would look more like an attempt to establish a partnership with the major digital platforms than – like the current Bill – the work of a highly suspicious government taking an adversarial and provocative stance towards them.

 

Professional news content should not be exempted

 

24. At the same time, current exemptions relating to professional news content ought to be removed. In its current form, the Bill gives an impression of special solicitude to information that has a particular provenance, as opposed to material of a particular kind such as parody, satire, academic discussion, religious doctrine, etc. Content originating from professional news providers can be just as false and dangerous as content from other sources. We might hope that it would more often be accurate than content from other sources, but on the occasions when it is inaccurate it is especially dangerous because it comes from sources with reputations for being accurate and authoritative.

 

25. If there is any doubt that material disseminated online after originating from professional news sources can be dangerously inaccurate, consider the following example. An explosion happened in the courtyard of the al-Ahli Arab Hospital in Gaza City in October 2023. Following this, revered news outlets such as the New York Times and the BBC attributed the explosion to an Israeli airstrike, falsely reported the destruction of the hospital itself (with misleading imagery), and provided readers/viewers with a greatly inflated toll of deaths and injuries. There is still some debate over the cause of the explosion, but it was likely an errant rocket fired by a terrorist organisation operating from within Gaza rather than an airstrike by Israel. This kind of inaccurate and irresponsible news reporting can lead to riots and other violence, and when it happens it is at least as great a danger as false information from less prestigious sources. Whatever plans are adopted by digital platforms to protect the public from false reports that could foreseeably cause extraordinary harms, these plans should not exclude scrutiny of reports from professional news outlets.

 

An international dimension

 

26. There is also an international dimension to this legislative exercise. It is not clear how digital media companies that operate worldwide are supposed to comply with detailed systems of regulation, such as set out in the Bill, that might be enacted by each of the world’s countries and might impose very different or even mutually contradictory responsibilities. Once again, that might not matter if digital platforms were inherently dangerous and were rightly viewed with suspicion. As we’ve seen, however, these platforms have significant democratic benefits. Australia should not act so as to be part of an accumulating international problem that hinders the platforms’ operation and hence puts their democratic benefits at risk.

 

27. Moreover, each time a liberal democracy such as Australia enacts legislation that suggests hostility to digital platforms, and negatively impacts their ability to operate freely, it provides a precedent that other nations can appeal to. The world’s dictatorships and theocracies can argue that if legislation of this kind is good enough for the likes of Germany and Australia it is good enough for them, notwithstanding that “false information” laws in dictatorships and theocracies are designed to suppress any speech that dissents from the programs and ideologies of their governments. To set a good international example, Australia should restrain itself and enact legislation aimed at controlling only the most clear-cut and seriously harmful false content, while imposing only the minimum necessary burden on the operation of digital platforms.

 

Final observations

 

28. Finally, I’ve mentioned that there have been some downsides to the emergence of digital platforms. These have included a generally abusive environment of discussion in many cases, which can have the effect of driving some people away from participating. In some cases, individuals have been singled out for public shaming by online campaigns directed against them personally (in passing, it’s worth taking note that professional journalists have been deeply implicated in some of these destructive campaigns against individuals, as with the notorious cases involving Justine Sacco and Tim Hunt). The Bill does nothing to address this genuine downside of digital platforms, and it is doubtful that very much can be done apart from attempting to create a culture where such nastiness and cruelty are widely regarded with disdain.

 

29. However, it is clear enough that many participants in public discussion on digital platforms act in this manner because they see themselves as having become political players in a small way. In recent publications, I’ve argued in support of a morality of public discussion, such as identified by John Stuart Mill in On Liberty, whereby participants discuss ideas with honesty, good will, open minds, and tolerance for others, fairly interpreting and representing what their opponents are saying, and acknowledging whatever strengths their opponents’ arguments might have. If they were following such a morality of public discussion, participants would focus on issues and arguments, and would avoid efforts to stigmatise and destroy their opponents as individuals.

 

30. It is, however, difficult to make this ideal seem attractive when nothing like it is followed by professional politicians in Australia and other liberal democracies, who thereby set a bad example. One positive step that members of the Australian Parliament could take would be simply to commit themselves to setting a good example to the general public in this country when it comes to ethical, and at least minimally civil, participation as discussants within the public sphere. This might be of more social value than any number of detailed statutes that attempt to regulate and constrain free speech.

 

Yours faithfully,

Russell Blackford

(Dr Russell Blackford, Conjoint Senior Lecturer in Philosophy, University of Newcastle)

30 September 2024