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.

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.