2011-11-06 Commentary on Jennifer Robinson & Julian Assange's article: Bolt & free speech

I have the greatest respect both for Jennifer Robinson and Julian Assange, both stalwarts in the field of human rights, the former in her capacity of legal representation and advocacy, and the latter as arguably the greatest whistleblower on abuses of human rights, of all times.

Their joint recent article at the Sydney Morning Herald I found to be well argued but I am not yet wholly convinced that the law is wrong on the issue of free speech, (the Racial Discrimination Act 1975 - "RDA" - being the subject of contention here) which they both oppose in law and disagree with the particular decision in Eatock v Bolt [2011] FCA 1103, (Federal Court of Australia.)

It's not that I necessarily oppose the abolition of the RDA, simply I advance the proposition that minorities still need some kind of protection from personal vilification and personal defamation, and that the debate needs more people to become politically involved. On the other hand that cannot or should not extend to the creation of a special category of 'religious defamation' that Islamic nations have recently tried to get up at the UN.

The first point I make is a minor quibble caused no doubt by the restrictions of an op-ed:

But the real question is whether we want judges in charge of the parameters of public debate - what we can and cannot say - at all.

As to judges in charge of the parameters of public debate it is obvious but I mention in passing that judges apply the law, and while in the case of Bolt the judgement may have set some species of precedent, it could be overturned on appeal either to the three judge/full bench of the Federal Court or even to the High Court. (I hope they run the constitutional defence as below, if the matter is appealed.)

Suffice it to say, not many would oppose judges being in charge of open defamation hearings rather than say, politicians or the village idiot (I think I'd pick the latter in preference though).

The question of whether the defamation law is valid or not however is the analogous question that Robinson and Assange put in relation to the RDA. To whatever extent they agree with defamation law (UK terrible, Australia not as bad?) and its strictures on free speech, necessarily, a judge has to be the decider of law and fact, (the latter in the absence of a jury.)

The juxtaposition of racial hatred and defamation.

In the case of major free speech arguments and law relatively recently, defamation (in the arena of public debate) the case of Theophaneous v Herald and Weekly Times springs readily to mind, along with Lange v Australian Broadcasting Corporation.

The case of Theophanous reaffirmed an earlier case in which there was held to be an implied right of political communication - a shield rather than a sword - which removed the application of state defamation law under narrowly defined circumstances. The principles of that case are interesting precisely because firstly, they created a defence for a publisher, and secondly it examined principles of journalistic responsibility which have some direct parallels to the RDA and its application to Bolt's case.

Sally Walker, Professor of Law at the University of Melbourne has an explanatory paper online, written in 1998 explaining the "constitutionalisation of defamation law" that the case of Lange represented.

In Theophanous, Mason CJ, Toohey and Gaudron JJ concluded that the common law of defamation was balanced too far against freedom of communication.[14] The implied freedom of political communication outlined above did not, however, demand or need protection in the form of an absolute immunity. They held that there was nothing in the concept that required protection in relation to the publication of statements that were knowingly false, or which were published with reckless disregard for the truth or untruth of the material, or for statements made irresponsibly.[15]...

Thus, by a 4:3 majority, the High Court established a defence, derived from the Constitution, which was to apply where a defamatory publication was a matter of political discussion. To obtain the protection of this defence, the defendant had to establish: that it was unaware of the falsity of the material; that it did not publish the material recklessly, that is, not caring whether the material was true or false; and that the publication was reasonable in the circumstances.[18] This defence will be referred to as "the Theophanous defence".

The RDA s18C says this is an offence:
Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

The statutory defence relied upon by Andrew Bolt:

[18D]Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

Judge Bromberg said of this section:

It is a provision which, broadly speaking, seeks to balance the objectives of section 18C with the need to protect justifiable freedom of expression.

Remember those words, fair and accurate - fair comment - genuine belief - public interest.

And generally in Bromberg's summary:

22. In reaching those conclusions, I have observed that in seeking to promote tolerance and protect against intolerance in a multicultural society, the Racial Discrimination Act must be taken to include in its objectives tolerance for and acceptance of racial and ethnic diversity. At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free from pressure not to do so. People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance.

23. I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language.

24. In coming to that view, I have taken into account the possible degree of harm that I regard the conduct involved may have caused. Beyond the hurt and insult involved, I have also found that the conduct was reasonably likely to have an intimidatory effect on some fair-skinned Aboriginal people and in particular young Aboriginal persons or others with vulnerability in relation to their identity.

25. I have taken into account that the articles may have been read by some people susceptible to racial stereotyping and the formation of racially prejudicial views and that, as a result, racially prejudiced views have been reinforced, encouraged or emboldened. In the balancing process, I have also taken into account the silencing consequences upon freedom of expression involved in the Court making a finding of contravention.

26. I have concluded that the conduct of Mr Bolt and the Herald & Weekly Times is not exempted by section 18D of the Racial Discrimination Act from being unlawful because:
(i) it was not done reasonably and in good faith in the making or publishing of a fair comment, within the requirements of section 18D(c)(ii) of the Racial Discrimination Act; or
(ii) done reasonably and in good faith in the course of any statement, publication or discussion, made or held for a genuine purpose in the public interest, within the requirements of section 18D(b) of the Racial Discrimination Act.

Note some identical wording above from the 'Theophanous defence' and terminology familiar to lawyers in defamation, including the qualified privileges (defences) of publishers.

(Theophanous)...the defendant had to establish: that it was unaware of the falsity of the material; that it did not publish the material recklessly, that is, not caring whether the material was true or false; and that the publication was reasonable in the circumstances.

...as against the findings of Bromberg regarding reasonableness, falsity and recklessness.

The question arises from this, should publishers, significant ones like News Corporation with wide penetration in mass media (all over the world); with deep enough pockets to defend any defamation case: be given the right to peddle false statements recklessly, not in the public interest, which in substance defame people who cannot seek redress in a civil court due to the cost?

That leads to another question on redress, did Bolt and the Herald Sun give any of the plaintiffs a right of reply in the newspaper? I think not, but stand to be corrected on that.

Jennifer and Julian cite Fredrick Siebert: The true and sound will survive. The false and unsound will be vanquished. That is a normal expectation and with a level playing field more so. But for potential plaintiffs in a hypothetical defamation case against Bolt and News Ltd, with limited resources against the might of a propagandistic inclined giant like News Ltd, the repetition of lies becomes truth (for the easily hoodwinked/inclined to racist views), and is a reality that makes such a venture daunting to say the least.

Climate change? Wikileaks being financially embargoed (because it's allegedly a terrorist organisation and Julian Assange should be summarily executed?) The worrying attacks on evolution and abortion by fundamentalist creationists leading to the occasional bombing of abortion clinics by some deranged fundamentalist followers? The'Birthers' against Obama? Why are these palpable falsities still running?

Aside from incitement/criminal law, including EU law on corporate monopolies, there is never a guarantee that such falsities will be vanquished. I'm not suggesting for a moment that the varied sort of 'non incitement' opinion in the paragraph above should be censored: merely to illustrate that the dividing line between censorship and free speech is a extraordinarily difficult one in finding the right balance on what should be a utilitarian basis (with Kantian side constraints) ie that does not breach human rights.

The evils of censoring free speech is one thing, but the predilection of organisations like News Ltd peddling outright lies and propaganda on scientific subjects with a political agenda in mind is worrying. Propaganda and the perpetration of ignorance, mainly, appears to sustain the approximate 45% non acceptance of evolution as a scientific fact in the USA. (And for a definition of the word 'theory' in its proper scientific context, think about the theory of 'gravity' at the same time as thinking about the 'theory'of evolution.)

The larger the corporate media organisation, the principle should be that more responsibility applies to truth and not being a usurper of government, nor propagandist agency for government. Sadly we see the opposite in these times. (A good read on Murdoch at the beginning in the UK: "Good Times Bad Times" by Harold Evans, editor for whom editorial independence became a joke.)

Taking into account all the similarities, conceding that the elements of the offence in the RDA are not the same as for defamation (but significant parts of the legal reasoning are common), my examination of the Bolt case leads me to suggest that the RDA is a species of defamation law notwithstanding those differences. It's like a defamation law for those minorities who could never fund a plaintiff's defamation case with it's inherently horrendous legal costs, plus paying the defendant's costs if the case is lost.

Moving back to Jennifer's and Julian's article:

The best policy decisions result from robust and uninhibited debate. For this reason, politicians have a privilege denied to the rest of us, aside from fat pensions. They cannot be prosecuted for what they say in Parliament, including hate speech. Why should we accept free political speech for politicians but not for ourselves?

Interesting point although there is a "Privileges Committee" of most parliaments to redress abuses. (Note Senator Heffernan's disgraceful attacks on the then Justice Kirby of the High Court and the Senate's censure.)

Free speech for parliamentarians serves a useful function that properly used, allows people or corporations to be exposed for wrongdoing (that say, police have turned a blind eye to) that otherwise the defamation laws would prevent. The only way that people would have the same free speech rights as politicians would be if all defamation laws were abolished. Abuses by politicians of that privilege are not common, (Senator Heffernan's allegations were promptly disowned by John Howard once the forgery became known.)

I do not think the analogy of parliamentary privilege is valid. It is an exception to defamation law with long roots in our UK inherited legal systems.

The law sanctions speech only if it incites violence. Rather than flourishing, the Klan and neo-Nazis have been withered by the robust criticism that such protections afford their critics.

Arguably, denying the holocaust is a form of incitement (and I don't press that point) but I do dispute the assertion that neo-nazis have withered in Germany they are thriving and hiding themselves not on the fringes, but within the middle classes it seems:

Investigators estimate that neo-Nazi households are raising several thousand children to be familiar with weapons, violence, raiding private homes, Nazi cult objects, songs of the Hitler Youth and Waffen-SS, and the worshiping of major figures from the Third Reich. They are unwittingly becoming part of a sworn "fighting community" hidden behind a middle-class fa├žade.

I fail to be convinced of the 'withering.'

Note that Germany would likely argue that being the founding nation of Nazism, they have a special interest that it doesn't occur again.

My first conclusion is that to the extent the RDA (and likewise any other national law) encompasses sanctions on indirect incitement to violence and straight up defamation, for the protection of individuals (much more than groups) it is not necessarily bad law.

...if we were serious about banning hate speech then we should have lawyers 'reviewing the scriptures' (the Bible and the Koran are full of religious bigotry and homophobia).

And there Jennifer Robinson and Julian Assange are on strong ground. Could we ever imagine the howls of incandescent rage should any government attempt to censor the scriptures? The dimension of free speech and religion ordinarily attracts constitutional protection, however as long as there is no incitement religion can never be justifiably 'protected' by a 'group' defamation.

It is legitimate if not imperative to critically analyse science - scientists need to know they are not going off the rails of scientific methodology - and in matters affecting the life of human beings especially so.

Religious decisions based on dogma need even greater scrutiny and criticism ie reproductive edicts contrary to safe sex. Faith based beliefs that fly in the face of science will always be part of our free speech controversy.

Hurt feelings of a group are quite distinct from hurt feelings resulting from personal defamation, and attempts to say they are the one and same is disengenuous at best. For consistency, censoring the homophobic hatred and bigotry out of the bible would also lead to censoring all books which promoted hatred of other people ie gays and other ethnic groups.

The argument on strictures for holocaust denial (and it's present example by corollary, Turkey's law making it a crime to say the Armenians were subject to genocide in the past) is a powerful one and shows how a posited and likely justifiable 'exception' for Germany leads to worse law elsewhere.

So what subjects are off limits? What societal 'goods' are worthy of protection through censorship?

That is the burning question and it needs much more debate.

My final conclusion is that if we are to abolish the RDA, noting that the case of Bolt includes directly or indirectly elements of defamation law, we might consider that the Federal Parliament enact legislation (and provides the money) to fund minority rights (subject to merit as all legal aid commissions apply) into defamation actions at the State level (all unified across Australia by the way, so no 'forum shopping'.)

It possibly would be revenue neutral or better, with the Commonwealth's Human Rights Commission or other bodies not having to investigate these sorts of matters.

Such cases are more fit for the civil courts but the cost of those actions has always been prohibitive.