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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); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Thursday, December 29, 2011

Currently reading - Speech Matters: Getting Free Speech Right by Katharine Gelber

This study of freedom of speech in Australia is something of a wolf in sheep's clothing. It makes much of being a free speech advocacy book - but when you actually read it, Gelber is not much of a free speech advocate after all. She is very keen to protect speech that she approves of, which is basically anti-establishment/left-wing political speech, but not so keen on protecting speech that she dislikes. This is justified by her deplorably uncritical discussion of international conventions (Gelber never seems to have met a UN instrument that she didn't like) and some hackneyed disparagement of the more "absolutist" US approach, which she hastens to assure us is an international outlier.

That said, I am sympathetic to most of her examples. Like Gelber, I'm not a fan of SLAPP lawsuits - unmeritorious actions initiated by corporations to silence their critics. Then again, Gelber never seems to have met a corporation that she actually liked or to have doubted that any lawsuit by a corporation was merely vexatious. (For the record, I am generally opposed to corporations being able to sue for defamation, and am glad that their right to do so is severely restricted in Australia.)

Again, like Gelber I don't want to see anti-war artworks suppressed by the police or by meddling local councils. Like her, I'm concerned at the breadth and multi-pronged nature of free speech restrictions in anti-terrorism legislation. And again, like her, I don't want to see red tape, officiousness, and police hostility hindering peaceful protests against government policy or corporate activity.

But Gelber's strong biases let her down. It would be more impressive if she showed the same scepticism about hate speech laws as she does about anti-terrorism legislation. In the latter case, she acknowledges the need for some limits on speech, at least when it comes to direct incitement of violence, but her whole emphasis is on the overreaching and problematic drafting of the laws. When we turn to hate speech, the tone of the discussion changes - these are "nice" restrictions on freedom of speech, it seems, so she handles them with kid gloves. There is no mention of important cases such as Kazak and Catch the Fire Ministries, where overly zealous tribunals made a mess of things and had to be corrected on appeal.

Though there is much about art, the entire emphasis is on left-wing political art. Fine, but where is her discussion of, say, the Bill Henson affair, or violent videogames, or controversial movies like Salo?

I'd have been much more impressed by the book if its author had managed to say something about the censorship of erotic art and the difficulties of drawing the line between that and outright pornography (if even this should be banned or regulated). This important and difficult issue, however, is not mentioned at all.

I'd have been even more impressed if she'd defended our right to satirise religious organisations, leaders, and ideas, even if she also discussed the dangers that we are talking about in my earlier thread on shutting up. Unfortunately, Gelber seems to lump religion in with race - as so often happens in legal instruments - when the differences are more important than the similarities (for more, see my chapter on freedom of speech in The Australian Book of Atheism, edited by Warren Bonett, or the very different, though complementary, chapter on freedom of speech in Freedom of Religion and the Secular State).

I suppose the excuse could be that Gelber is really only writing about political speech. The title is misleading - as titles often are - because the book is not about free speech, broadly construed, at all. It is about free speech for people who want to engage in political advocacy, preferably of an anti-establishment or broadly left-wing kind (talk of "left-wing" and "right-wing" is not that useful, really, but it is pretty obvious that Gelber's main sympathies are with what she sees as oppressed identity groups and with speech that attacks corporations or conservative governments).

Again, I'm all in favour of protecting the speech of left-wing activists, but I also want free speech for my opponents. Furthermore, the rationale for free speech is far more complex and multi-layered than Gelber suggests. Yes, it is partly to ensure that people can discuss political ideas and engage in political protest, but that is only one of the well-known rationales for freedom of speech. Gelber mainly ignores the others, which enables her to avoid standing up in defence of a wide range of much-censored speech.

All in all, the book is disappointing. I was expecting something more comprehensive, with a much stronger commitment to freedom of speech across the board than the author actually displays.

That's not to say Getting Free Speech Right is without merit. For one thing, it has the great virtue of being well written - the prose is clear and vivid, and the chapters are structured to maintain our interest. Gelber can write effectively, which is a big plus these days when so much unreadable dreck by academics somehow gets published.

Better still, despite its narrow remit the book contains a lot of useful information. Within that remit - restrictions on vaguely anti-establishment or left-wing political speech - the book provides us with plenty of facts about how the law works in Australia. It also offers much information about how Australians think about freedom of speech: it seems that we are happy to give lip service to the idea, and can be swayed once it is argued that freedom of speech is at stake in a particular situation, but we are all too prone to support freedom for speech that we like and to countenance restrictions as soon as we encounter speech that we don't like (or find the least bit offensive or inconvenient).

That's an important lesson to take from the book, and you might be interested in the detail. Unfortunately, the author herself seems much like other Australians - freedom of speech by all means, but not for "nasty" speech please.

We need a broader debate about freedom of speech, here in Australia, and, to be fair to Gelber, she has made a useful contribution to it. As I said, the book has its merits, but it could have been so much better.


Thanny said...

I don't think I could take anyone seriously about freedom of speech if he or she thinks the standard set in the US is an "outlier".

I'll take "absolutist" free speech, guaranteed in a foundational legal document, over "nice" free speech - not guaranteed at all - any day of the week, and twice on Tuesdays.

Svlad Cjelli said...

"... erotic art and the difficulties of drawing the line between that and outright pornography"

In the words of (presumably) Trudy Cooper:
"I think 'erotica' just means
'porn that works for me'"

Russell Blackford said...

Perhaps, but do you make no distinctions at all in this area? I'm not necessarily saying that there are distinctions that are sufficiently clear for legal purposes (perhaps there aren't; this is genuinely difficult), but even without doing a whole lot of research I don't have too much trouble thinking of kinds of sexual material that tend to do dirt on women - material that I don't have too much trouble calling misogynist - and material that celebrates sexuality, erotic love, the beauty of the human body, etc., in ways that seem positive or at least morally unproblematic.

I'm sure there's a huge grey/debatable area, e.g. with a lot of the old-fashioned Playboy centerfold material. And fairly subtle things (e.g. about the way bodies are posed) can make an image seem demeaning, with the result that two quite similar images can be received, psychologically, in very different ways by the same audience. They may also be received in different ways by different people.

Part of the problem may, in fact, be that most of the material we're talking about falls into an arguable area. But the extremes seem identifiable.

ColinGavaghan said...

So the line isn't so much between 'art' and 'porn', as between probably harmless and probably harmful porn. I'd go along with that, provided the line-drawing is informed by credible evidence as to the effects that certain materials actually have. For instance, it isn 't obviously true that, say, BDSM material contributes more to misogynisitc attitudes than more mainstream, 'vanilla' porn. It may do, but it's an empirical question requiring empirical inquiry; without proper research, we risk censoring on the basis of individual distaste rather than legitimate harm avoidance.

Russell Blackford said...

As I say, I think it's difficult. Often the terms are used as "erotica" (that nice stuff) and "porn" (that nasty stuff that no one favours). Which means that Svlad has a point here.

But it's not clear what stuff really does harm in the sense of producing genuinely callous attitudes to women that are then expressed in discrimination or violence, or whether any of the stuff we're talking about really does that. My intuition - but no more - is that some of it does play a role in the mechanisms that reinforce misogyny, or at least what I call misogyny-lite (I doubt that many men literally *hate* women, but I'm convinced that a lot of men don't like women very much and feel a certain degree of resentment toward them).

Who knows what the law should do? There is certainly material that I dislike, and I can understand, despite my "male privilege" that gets brought up now and then in such debates, why there is larger class of material that many women dislike. Also, a lot of this material doesn't seem to have much free-speech value, even on an account of free speech that goes far beyond Gelber's.

But drawing useful boundaries for the purposes of the criminal law is very problematic, and I'm not convinced it can be done.

Christian Munthe said...

Following up on Colin's point: It's interesting trying to imagine how a good study with a potential of actually teaching us something on this matter would look like. First, it would need to be very longitudinal and include a large population and control for zillion of confounders - that's all pretty evident req's. But, next, it would have to make decisions on what to compare, which leads us back to Svlad's rhetorical but good point that categorization in this area seems to be evalutaively loaded from the start.

Perhaps this would be a way: Have one team of sociologist monitor media consumption habits in a few interestingly different countries over, say, 4 decades. Let them collect truly raw data: just the title of the media consumed and the amount and frequencey of consumption per subject + as many possible confounders of harmful behaviour they may think of. Have another team of conceptual analysts spend the same time inventing different taxonomies that classify media content in relation to depiction of sexual actions or presumed sexually arousing events or materials of other kinds. Let the inclusion criteria be broad, so that nothing is missed. Then (after forty years) try out each taxonomy and see if a link can be found to registered assaults, rapes, etc. Also, do macro-analyses of trends in consumer behaviour related to violent crime trends. That may do it, but who would pay for it?