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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019) and AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021).

Thursday, February 19, 2009

Why don't they talk about defamation of science?

While we're discussing the ludicrous concept of "defamation of religion", I'm wondering why no one talks about defamation of science. Maybe we could try to ban Mary Shelley's Frankenstein and all those other books, movies, TV shows, etc., that present stereotyped images of irresponsible, hubristic scientists. Maybe we could ban a film like Expelled, with its slanderous claim that genuine biology in the form of Intelligent Design is being kept out of the academy by a conspiracy of Darwinists ... not to mention the claim that Darwinian evolutionary theory was somehow to blame for the Nazi Holocaust. Then we have the relentless war on science conducted by British journalist Bryan Appleyard, who believes that Nazism was not merely a misuse of modern science - with its mechanised attempts to exterminate the Jewish people - but somehow exemplary of it.

In fact, once we start looking into it, we can see that the defamation of science goes on and on. If the idea of defamation - a legal category to protect individuals from being shunned, or socially ostracised, by attacks on their reputations - scales up to include contentious debates about ideas and organisations, then let's get on the case. It seems that science has a particularly strong claim to be protected against defamation in this extended sense.

Of course, once this example is used, it becomes clear how ludicrous the idea is. Defamation law is not fundamentally about protecting organisations and it is certainly not about protecting ideas. When ideas are criticised, the correct response is not to march off to the courts to obtain an official ruling on a claim such as "evolutionary theory contributed to the Holocaust" or "the Koran contains material that lends itself to support of terrorism". Ideas should be met with ideas. Criticism of ideas should be met with counter-criticisms.

Likewise, large organisations can take care of themselves in public debate. There might be a need for some kind of law to protect share markets from instability caused by false rumours, but that purpose would be remote from the purpose of defamation law. Generally speaking, it should not be possible to sue for defamation of a company, as opposed to individuals connected with it. Here, the existing law should be scaled back if anything. It certainly should not be possible to defame something like a church or a religious sect. Once we talk about a religion itself, not its individual members or the organisations they have formed, any analogy with defamation has become so tenuous as to be laughable.

Outside of very narrow areas that should not be expanded by dubious analogies, the answer to bad speech is better speech.


Steve Zara said...

Hi Russell

I'm not entirely comfortable about your lack of protection from defamation of companies and sects.

Firstly, there are small companies that can be subjected to unfair attacks, but don't have the resources to respond.

Secondly, there can be groups within religious communities that can be actively promoting attitudes beneficial to society. Would we deny protection from defamation for one of the many gay, or anti-Shariah Muslim groups, simply because they try and use religious arguments?

Many smaller groups don't have the resources to promote their counter-arguments.

If we want to have an open discussion of ideas, doesn't that require each group to have the resources to participate? Doesn't that imply some protection, in some way?

Russell Blackford said...

Well, it depends. There are always difficulties in how exactly defamation law should be framed so that it protects matters of essentially private interest (a false claim that Russell Blackford has sex with hamsters) rather than discussion of matters of public interest (whether or not the prime minister is an incompetent leader). Drawing the line is dificult, but we need to think about why we want defamation law in the first place - it's because we can be destroyed, not physically but socially, if bad enough lies are told about us. We can be shunned, and if it reaches a severe enough point many people might even commit suicide. Having a good reputation in society really is that important.

IMHO, we need to keep focused on that with defamation law, not let it grow to become a monster that swallows up freedom of speech. There may well be other reasons to restrict certain kinds of speech, and of course if an organisation is small enough any lies about its honesty and so on will directly impugn the honesty of someone running it. In that sort of case, yes, defamation law might have a role. But I really do think that we must keep defamation law anchored to (what I see as) its real purpose. It's not there to do the job of providing some sort of positive right to have your say. If that is going to be provided (and I'm not at all convinced it should be) then there has to be another way, which will presumably involve the use of taxes to provide the relevant media to people who would otherwise not have access.

I don't see defamation law as particularly relevant to the situation you describe. Of course, someone might try to discredit the leader of the anti-Shariah group by saying he has sex with hamsters. In that sort of situation, defamation law has a role to play. I guess somebody could try to discredit the organisation by misrepresenting its doctrines, but if the organisation is sufficiently controversial for anyone to bother doing that, it probably has avenues to say what it really thinks - it's in no different position from, say, a small political party whose doctrines might be misrepresented. Defamation law isn't a good way to deal with that problem.

On your last point, I think that's a rather different issue. Generally, I don't see anyone as having a right against the state, or against society as a whole, to have their voice heard if they can't find people who want to listen. You should be free to say what you like, but other people might be bored by it, or find no merit in it, and you just have to accept that. E.g, I can write a book setting out all my views, but I have no right that there be a publisher prepared to invest in it. If my book is good enough, and if there's no state censorship, I have a fair chance of getting it published, but the book may be loony, or badly-written, or just not commercially viable.

I can always put my views in a blog of course, but whether anyone wants to read them is another matter. We can't all be PZ Myers.

Lorenzo said...

One of the sadder abuses of language is "Islamophobia", using an analogy with "homophobia" (itself a misleading term: the issue is far more hatred than fear) which is used both to shield Islam from criticism and to treat Muslims as a group subject to "racism". A transmutation all the more ridiculous given what Muslim preachers typically preach about gays.

I suspect that defamation of science does not occur to folk as a notion because:
(1) there is a lack of community group in the sense of Catholics, Jews, etc
(2) science is treated as something people do
(3) it is an open system in a way religions are not, so there is less sensitivity and less rigid doctrines to be defended/derided.

Steve Zara said...

There may well be other reasons to restrict certain kinds of speech, and of course if an organisation is small enough any lies about its honesty and so on will directly impugn the honesty of someone running it. In that sort of case, yes, defamation law might have a role.

Yes, that was my concern.

As for my last point - it was not well expressed. By "resources to participate" I meant the ability to not be shouted down by some opposing majority. That is not so much about gaining publicity, but about being in a position to respond to attacks. However, it would be very difficult to judge when support would be appropriate, so I have to agree with you your general position.

Anonymous said...

Hey Russell,

It's been a while since I've commented on your blog. I generally have to agree with pretty much everything you have to say about defamation and freedom of speech. Surely though it is possible to defame religions/organisations in such a way as to make recourse to the law the correct course. For example falsely claiming that some religious ritual invovles sex with hampsters and eating human foetuses, would it be advisable to have some legislation to cover this sort of defamation of groups or should it just be considered as defamation of individuals within the group legally?

Also could misrepresentation of views count as defamation in the case of, say, those misrepresenting Socrates views in ancient Greece?

" and to treat Muslims as a group subject to "racism""

Why aren't muslim's a group that might be subject to (something analagous to) racism. If the wrongness of racism lies in failing to consider the interests of the race discriminated against to the proper degree why could not the same thing happen to Muslims?

Russell Blackford said...

I suppose we have to identify what is actually wrong with racism and the circumstances in which expressions of racism should be illegal. I don't think that all expressions of racism should be illegal, but if you look at the classic and worst kind of racism it involves claims to the effect that members of some "race" are biologically inferior or inherently evil. That sort of claim has a track record of producing horrors, and we have to take that into account.

Claiming that the doctrines of a certain religion are false is rather different, even if the analysis in support contains a lot of errors.

Even when different religions are allowed to accuse each other of being inspired by the devil, the historical track record for allowing them to say such things is quite good - if you let the religions say what they like about each other but don't let any of them get access to the power of the state, that seems to "soften" religion better than, say, banning the extreme Protestant claim that the Pope is the Antichrist. So, the cure seems to be separation of church and state rather than censorship.

The point you make, Thomas and Steve, about clear misrepresentations of religious doctrines and practices is an interesting one. If someone made a misrepresentation about a rival company's product, it would probably be caught by trade practices law, rather than defamation law. I.e. the policy is to keep the commercial markets honest. It seems much harder to do that with the marketplace of ideas, and it's not clear to me that the state should be trying to umpire the marketplace of religious ideas to that extent (we might trust the state to do this with a claim about a rival kind of toothpaste, but do we trust it to do so with claims about rival religions?).

I'm not an absolutist about any of this. I'm not saying that the state never has good reason to intervene when there is an imminent danger of secular harm. All the same, I'd want a very good reason before the state starts to suppress speech, even misguided speech, about ideas. Criminal law is a very blunt instrument, and defamation law (or something like it) isn't much better.

But say that a situation is reached where Molochians as a group are endangered by false claims that they sacrifice children - there is a real risk that this claim is going to lead to Molochians being ostracised or even lynched. Maybe they are too small a group to get their viewpoint across (though I wonder whether a truly tiny and powerless group would necessarily be vilified in this way). Perhaps here the state should do something, but shouldn't its first option be an education campaign? These can be very successful if done well.

What the state wants isn't so much that people who spread these (ex hypothesi) clear falsehoods be punished so much as that the falsehoods not be believed by mainstream society. Conversely, if you start punishing people who, for whatever reason, feel driven to express this kind of falsehood you may actually create martyrs, perhaps increase social unrest, create the impression that ideas may be being suppressed because of their truth, etc.

I actually think, though, that these questions are fairly remote from the real-world current issues about "defamation" of religion, where many of things that the Muslim nations, in particular, would seemingly like not to be said actually seem as if they may be true, e.g. that women are oppressed in various ways in Muslim countries, certain laws (such as the death penalty for homosexual acts) are barbaric, certain practices are carried within Muslim communities with a degree of organisational support from imams, etc., certain verses in the Koran are open to nasty interpretations, etc.

Perhaps there's a sense in which some of these claims are false, but it doesn't seem like an area in which speech should be chilled because we risk being sued for defamation if we make mistakes. It seems like an area where robust debate is possible and desirable.