The totalitarian fallacy

John Roskam has a hard hitting op-ed in the AFR.

Finkelstein’s recommendations are profoundly illiberal and undemocratic.

They are the most serious assault on the liberties of Australians since Robert Menzies tried to ban the Communist Party in 1949. It is almost incredible that Finkelstein, who as a Federal Court judge once adjudicated on the lives of citizens according to the laws of a liberal democracy, could conceive of such a regime to control freedom of speech.

Finkelstein’s ideological position is not hard to find. It’s in paragraph 4.10 of his report. He thinks a council should control speech in Australia because most people are too dumb or ignorant to decide for themselves about what they see and hear and read in the media.

In response to the claim from News Ltd’s John Hartigan that ultimately readers “were capable of making up their own minds” about bias in the media, Finkelstein writes, “often, however, readers are not in a position to make an appropriately informed judgment”.

This is intellectual arrogance at its most breathtaking. And it’s a great argument against democracy. If, as Finkelstein claims, people aren’t smart enough to decide for themselves the merits of what they see in the media then they’re certainly not smart enough to decide who to vote for.

This is the totalitarian fallacy: don’t let the people decide (because the people are too stupid), let judges and academics decide for them.

Then there is this:

[Malcolm] Turnbull issued a meandering and mealy-mouthed statement that left open the possibility of the Coalition supporting some or all of Finkelstein’s recommendations.

Turnbull said the report “deserves careful study and community discussion”. No it does not.

The report is bad from beginning to end and should be completely and unambiguously rejected by the Coalition.

If you expected anyone to stand up for free speech and against censorship it would be Malcolm Turnbull. After all, he made his name fighting the British government’s censorship of the book Spycatcher, and he loudly defended the “artistic freedom” of Bill Henson.

The Liberals have dropped the ball on free speech. It is unacceptable that somebody can photograph naked children but can’t publish an opinion critical of the government.

Update I: Malcolm Turnbull responds here.

When the Finkelstein Report came out on March 2 I stated both on Twitter and my website that the proposal for a new government funded News Media Council was not needed and did not appeal to the Coalition which favoured reducing rather than increasing regulation of the media. This statement was faithfully reported in the AFR (on page 1 no less):

“Opposition communications spokesman Malcolm Turnbull welcomed the report but said the proposal for a new government-funded super regulator was “not one which would appeal to the Coalition, believing as we do in a free press – free in particular to hold governments to account”.”

Other newspapers reported my opposition to the News Media Council recommendation in similar terms.

Turnbull just doesn’t get it. Here is the problem:

… Malcolm Turnbull welcomed the report…

One does not welcome totalitarians. One does not welcome restrictions on liberty. There can be no ‘Yes, but’ response to Finkelstein only ‘No’. Just no.

Update II: It looks like Malcolm Turnbull is trying to rewrite history. This morning he claimed that John Roskam had misquoted him.

In fact, as Mr Roskam knows very well, the remark he selectively quotes does not refer to the News Media Council proposal at all, but rather expressly refers to a proposal I made to change the defamation laws in a way that would promote freedom of speech by ensuring that where a libel is corrected and apologised for in a timely fashion the injured party would not be able to recover any damages other than for actual economic loss.

I’m not so sure about that. Here is what Turnbull said.

I do however welcome Mr Finkelstein’s recognition that in addition to the right of the media to free speech and the right of the individual to reputation there is also a vital right, or interest, of the public to timely, accurate information on matters of public interest. It has to be said that the legal arrangements at present do not adequately advance that interest.

Let’s unpack that.

in addition to the right of the media to free speech

Over and above the right to free speech

and the right of the individual to reputation

subject to the defamation laws

there is also a vital right, or interest, of the public to timely, accurate information on matters of public interest.

there is an additional right that Finkelstein recognises and Turnbull welcomes. Turnbull is not just talking about defamation.

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