Colin Rubenstein has an op-ed in The Australian defending race-based laws.
Nonetheless, some commentators believe that all racial hatred laws should be eliminated altogether, usually on purist “free speech” grounds. Free speech is fundamentally important to the functioning of a modern democracy, but this right has never been absolute. There have always been legitimate limits placed on it — from defamation, or incitement, false advertising, perjury and lying to authorities, to shouting “fire” in a crowded theatre.
Indeed.
One small problem – Andrew Bolt did none of those things.
Rubenstein then tells us:
However, the value of 18C’s provisions in combatting genuine hate speech has been demonstrated and uncontroversial.
That may even be true, if you believe that such things can be true.
But here is the thing. The Bolt case is a travesty. The arguments used in that case were disgraceful and offensive. As far as I’m aware Rubenstein did not speak out then. It is very clear that 18C is bad law and cannot be reformed – as George Brandis had wanted – it must be repealed.
At best Rubenstein’s argument can be described as implying that some injustice must be tolerated for the greater good; that some individuals must the sacrificed for the group. To that I say, “No”.
Update: A lurker emails:
If you actually read the Bromberg judgment you can see at para 358 both sides accepted that the defence Bolt & HWT ran of “fair comment” under section 18D of the RDA invoked the requirements of the common law Defamation defence of fair comment.
So Defamation was essentially in play.
Then at para423:
Ihave taken into account the value of freedom of expression and the silencing consequences of a finding of contravention against Mr Bolt and HWT. Given the seriousness of the conduct involved, the silencing consequence appears to me to be justified. The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law.
No in thunder.
The challenge to the Rubenstein’s of the world is to find any valid limit on free speech in addition to those that he listed.
What has been demonstrated so far?
Poor Old Rafe
3 Sep 12 at 4:08 pm
Even Bolt’s employers realised they had no grounds to sustain an appeal. They obviously realised that Justice Bromberg’s reasoning was sound. Bolt has been sulking ever since. He didn’t get his own way and flung a tanty.
hammygar
3 Sep 12 at 4:08 pm
Jews are often a bit flaky when it comes to free speech.
Am I still allowed to say that?
Infidel Tiger
3 Sep 12 at 4:10 pm
Their injustice tolerated but not their individuals sacrified for their group.
stackja
3 Sep 12 at 4:10 pm
You can go further and suggest that the very existence of that provision is itself an incitement to divisive acts of intolerance and aggravation of hatred and distrust. That has been demonstated far more effectively than any constraint on disagreeable talk.
Poor Old Rafe
3 Sep 12 at 4:11 pm
Race hate laws are an abomination that have no place in a supposedly free society. They are wide open to abuse and inevitably allow self-identified victim groups to harass those unlucky enough not to be able to claim such status. They also entrench an utterly absurd hierarchy of victim groups, creating further ridiculous, artificial social division.
That a bunch of privileged white parasites were able to use the existing stupid indefensible laws to effectively enshrine their perceived victim group status is an absolute disgrace.
Get rid of the laws, and then hopefully, the victim group parasites will also vanish.
Rabz
3 Sep 12 at 4:17 pm
Under Australian defamation law that comment is a poster child for defamatory speech.
Which is rather interesting isn’t it?
twostix
3 Sep 12 at 4:19 pm
No it isn’t.
badm0f0
3 Sep 12 at 4:21 pm
Except there is furious debate over the merits of 18C, so it clearly is a controversial law. And the fact that someone has been prosecuted does not demonstrate any “value” in the law at all. You could equally say that Iran’s laws on executing homosexuals have demonstrated their value.
Fisky
3 Sep 12 at 4:26 pm
‘One law for all’ is not in keeping with socialist ideologies. It’s divisive, it’s undemocratic, just how the socialists like it.
Gab
3 Sep 12 at 4:30 pm
‘One law for all’ is not in keeping with socialist ideologies. The RDA is. It’s divisive, it’s undemocratic, just how the socialists like it.
Gab
3 Sep 12 at 4:31 pm
Yes, it is.
Defamation in Australia
Publicly stating as a fact that a person “flung a tanty” and has been “sulking ever since” a court case is the very definition of inducing people to ridiculue or despise him. That’s why he did it and that’s what he was aiming for. So unless he can prove that is substantially true he’ll be on his knees groveling and apologising before he even gets to the court room or shortly after.
Australian defamation law is absurd, but then so are race based speech laws.
twostix
3 Sep 12 at 4:58 pm
Quite so, Sinc, quite so.
F U Hammy. The fact an appeal was not launched is no evidence of lack of merit of appeal. Heard about not wanting adverse publicity? Heard about making effort ploitically to change a bad law as against wastign time against a poorly drafted law you have little chance to beat?
Bolt is right to sulk that a country founded on such a strong base of common law rights going back centuries has come to this.
pete m
3 Sep 12 at 4:58 pm
No it isn’t.
badm0f0
3 Sep 12 at 5:00 pm
Id be more inclined to have a “right to retaliation” than a bar on free speech.
Eg: If a neo nazi shit was to attack verbally a Jewish person that Jewish person should be free to spit on them.
The police should be free to arrest the Jewish person, the matter should appear before court, and the judge should administer a $1.00 fine, no conviction recorded and proceed to castigate the nazi shit.
This would apply to normal debate of course, but if a person was going out of their way (say throwing nazi salutes etc) to be severely offensive.
thefrollickingmole
3 Sep 12 at 5:04 pm
I think it was Mark Steyn who described the example of “shouting fire in a theatre” as a very lazy example to argue limits on free speech.
Now, the limits on free speech are not those designed to stop crying wolf about a situation which could result in the immediate death and injury of people.
Instead, they are limits on political and cultural expression which remove the ability to discuss and argue ideas.
To have limits on these areas in case they “give offense” as so disgracefully judged, even to the point of guessing what the defendant might have meant, lately in Australia is hallmark of a totalitarian one-party state.
Shame on those partisan creeps.
James of the Glens
3 Sep 12 at 5:15 pm
“the” hallmark…
James of the Glens
3 Sep 12 at 5:18 pm
When was the last time you saw a nayzee (neo or otherwise) in this country?
Hint – there are lots of other ‘people’ now in this country who rabidly hate joooos, but who ‘identify’ as members of another designated victim group.
Your example would be more relevant if it included one of those ‘people’.
Rabz
3 Sep 12 at 5:20 pm
‘sactly. The Australian Greens being but one example.
JC
3 Sep 12 at 5:31 pm
Did anyone catch this post at Cafe Hayek? http://cafehayek.com/2012/09/quotation-of-the-day-388.html very relevant. Churchill had vision and eloquence.
Stephen Williams
3 Sep 12 at 5:41 pm
I think it’s valid as it shows a much, much stricter criterion for limiting free speech. Nothing in s18C covers this situation, so if you take the crowded theatre as your main example then you support completely repealling s18c.
Personally I’d replace 18C, with a criterion that says that the speech, irrespective of whether it’s ‘race-based’ or not, must be reasonably likely to directly cause physical harm to other people, before it can be sanctioned or prohibited.
That would cover jihadists urging their followers to blow infidels up, the KKK calling for ‘bash a lebo’ day as well as yelling fire in a theatre.
papachango
3 Sep 12 at 5:42 pm
Wonder if we could do one of them under 18C? It might at least show them how ridiculous the law is…
papachango
3 Sep 12 at 5:44 pm
The example of shouting “fire” in a crowded room is based on the 1913 “Italian Hall disaster”, in which 73 people were killed because someone did just that.
I agree that it’s a lazy example. This was an isolated event with unusual circumstances, and while the culprit probably intended to disrupt the party and clear the room, it’s highly unlikely that the tragic consequences were intentional.
dd
3 Sep 12 at 6:01 pm
But if truth is not a defence (current state of affairs legally, I believe), a person who saw smoke and flames might still become a defendant where a theatre patron was injured or killed (heaven forfend) after they had finished yelling “Fire!” and getting out of there.
Back to the main point, if 18C is bad law there are only two ways to deal with it – enforce it vigorously and without favour, or ignore it completely.
But the Bolt case is a very bad example of the selective application of a bad law to achieve a nefarious end – restraining freedom of speech where the hearers don’t like what is being said.
I agree with Sinc – “NO!” in spades.
John A
3 Sep 12 at 6:04 pm
There have always been legitimate limits placed on it — from defamation, or incitement, false advertising, perjury and lying to authorities, to shouting “fire” in a crowded theatre.
While all of these things are valid limits on free speech (and have a rational basis in liberal democratic theory) the cost to society of having absolute free speech would still be lower than the cost of going beyond these things into social engineering of free speech.
John Mc
3 Sep 12 at 6:09 pm
I believe Rubenstein is arguing to keep the 18 C provision to take on the BDS campaign, in a round a bout manner. He is playing the long game here.
Dan
3 Sep 12 at 6:22 pm
None of those examples have anything to do with free speech; they are examples of lying, misleading and other seperate criminal activities.
The debate after Bolt, as exemplified by the fuckwit, hammygar’s stupid comment, has been rather oblique to say the least.
A better example of where free speech collides with necessary restraints is the egotist, Assange’s case; that is, should the Wikileaks release of government information be an absolute requisite of providing for an informed citizenry or should it be vitiated when there exists real danger to individuals and groups when the information is released?
That is a better example then some fucking idiot yelling fire in a theatre and some fucking idiot using that as an example of a necessary constraint on free speech.
cohenite
3 Sep 12 at 6:23 pm
And so another attempt to derail the thread by some nutjob that cannot comprehend the topic.
Gab
3 Sep 12 at 6:43 pm
Personally I’d rather be spat on than be forced to spend all day in a courtroom waiting to pay a $1 fine for a frivolous charge.
Yobbo
3 Sep 12 at 7:14 pm
Julius, you really need to scram. You’re not smart enough to be here. Stop irritating us with your rank stupidity.
JC
3 Sep 12 at 7:24 pm
well it does. I don’t think Assange did anything legally wrong, however his buddy working in the State Department certainly did. He’s going to be someone’s little bitch for the rest of his life.
No they weren’t you moron. Wikileaks for example was what instigated the Arab Spring/ winter. There was information how the Yemeni government works with the US in helping the blow up AQ.
Lastly, you’re an idiot.
julius, you need to leave the site. You aren’t smart enough to be here. go away.
JC
3 Sep 12 at 7:32 pm
Still derailing the thread with your nonsense.
Gab
3 Sep 12 at 7:36 pm
No, you just need to fuck off.
JC
3 Sep 12 at 7:37 pm
If what Bolt said was punishable under 18c, why haven’t Bess Price and Dallas Scott been charged for the identical crime?
what planet am I on?
3 Sep 12 at 7:52 pm
If Rubenstein cannot defeat BDS without restricting free speech, then he has already lost, and so has Israel.
Fisky
3 Sep 12 at 7:57 pm
The founder of Wikileaks does not agree with you. He said that the chaos in Kenya, causing hundreds of people to be killed, was a direct result of the leaks. So you’re wrong again.
Fisky
3 Sep 12 at 7:59 pm
Then there is the fact that a Wikileaks employee called “Israel Shamir” (a Holocaust Denier), met with officials from the vicious dictatorship of Belarus to hand over information on the local opposition. They then used this information to crack down on their opponents.
So Wikileaks has caused actual harm, up to and including death, through its actions. I wonder if the “fire in a crowded theater” proponents will have anything to say about that?
Fisky
3 Sep 12 at 8:04 pm
Because the likely litigants are gutless scum who prefer easier targets. No matter what decision the judge comes to, any hypothetical trial against Bess Price will seal the fate of 18C. Bring it on I say!
Fisky
3 Sep 12 at 8:06 pm
If Rubenstein cannot defeat BDS without restricting free speech,
The Fisk Doctrine, Fisky. Think of the long game.
dover_beach
3 Sep 12 at 8:10 pm
The last time recorded was in the early 70s as a reaction to the anti-Vietnam (conscription) demos.
The persons involved in the National Socialist Party of Australia can be found in David Harcourt’s book Everyone Wants To Be Fuehrer [Führer] 1972.
They were more interested in dress-ups than a putsch, I think.
manalive
3 Sep 12 at 8:12 pm
Yes, but the Fisk Doctrine is, and has always intended to be, a temporary expedient lasting 10 years. If Rubenstein came out with a comprehensive Rubenstein Doctrine, well-explained and within clear limits, then I would hear him out. But if he turns out to be a Left-winger then he had better keep his head down for a decade or so.
Fisky
3 Sep 12 at 8:15 pm
Israel Shamir was born in 1947 you twit. How do you suppose he “fought” for Israeli independence? By throwing his rattle at Jordanian troops?
Sinclair, can we please pilot the Fisk Doctrine at Catallaxy? It doesn’t have to be for 10 years. 10 months will do it. We really need to clean out some of the Leftist trolls around here because they are insufferably stupid.
Fisky
3 Sep 12 at 8:24 pm
Yes Sinc. I think it would be a great idea to test out the Fisk Doctrine.
JC
3 Sep 12 at 8:26 pm
Fisk’s left-wing bleeding heart decade-ism is a disgrace.
He is the Malcolm Turnbull of the Fiskians.
C.L.
3 Sep 12 at 8:36 pm
What makes the RDA worse than other free speech restricting laws is the way it skirts around section 80 of the constitution – breaching the RDA is an indictable offence in all but name.
The sedition laws are formal indictable offences.
Even our defamation laws give the defendant the option of trial by jury.
But no such luck with the RDA.
If freedom of speech is to be taken away, then, at the very least, a jury should all agree with the proceedings. To do less is to invite allow the law to be a political football.
2dogs
3 Sep 12 at 8:45 pm
CL, did you just change your ‘tar to a drunken elephant?
Fisky
3 Sep 12 at 8:46 pm
Re: National Socialist Party of Australia, there’s this bit of archive film.
manalive
3 Sep 12 at 8:47 pm
I think it’s a dancing elephant.
C.L.
3 Sep 12 at 8:48 pm
Freedom of Speech
It is utterly astonishing to find where in the world the freedom to express one -self is currently under attack, and just who is involved in the legal actions to restrict these long –held freedoms.
Eighty years ago, the rising power of Fascism in Europe was facilitated to a major extent by totalitarian regimes strictly controlling what their populations could read in the papers and hear over the radio. Not only was freedom to tell the truth about fascism suppressed, but this control permitted evil propaganda to be broadcast. This manipulation of the media was one reason for the ultimate solution; the extermination of all those deemed to be enemies of the State. The Holocaust was unleashed, but the lack of a free press meant that no-one knew what was going on; or if they did they were too frightened to express an opinion.
Currently, the attacks on the Freedom of speech are prevalent in Australia, Britain and Canada. These three Nations suffered nearly 600,000 fatal casualties in their endeavours to successfully destroy Fascism in Europe. Sadly too late to save some 6,000,000 Jews, but nonetheless a terrible price in the lives of young Australian, Canadian and British men and women.
You would think perhaps that the very last people to defend the suppression of free speech would be those who had suffered most grievously from press censorship in Nazi Europe.
But astonishingly we find that Justices and Barristers and now a government Representative from Jewish backgrounds are at the forefront in removing freedoms of speech; the very sons of the generation that experienced the horrors of the Holocaust. How in the name of humanity could this happen? Why is not Jewry standing tall and saying “Enough! Our sons will not support of this infamy”
Ray Finkelstein, Ron Merkel and Mordecai Bromberg and now Michael Danby in Australia , together with Brian Leveson in Britain should be asking themselves some hard questions. As should the Australian Labor Party that is hell bent on emulating the excesses of European Totalitarianism by pursuing censure of the Press and maintaining the iniquitous Section 18c of the vilification law.
Dexter Rous
3 Sep 12 at 8:58 pm
Thanks for the historical context, manalive.
FFS, what a sad assortment of tossers.
Rabz
3 Sep 12 at 9:02 pm
Jews are often a bit flaky when it comes to free speech.
Am I still allowed to say that?
Infidel Tiger
3 Sep 12 at 4:10 pm
Only if its a false flag anti-anti-Semite Mossad trip wire?
Big Jim
3 Sep 12 at 9:48 pm
Ok, i was being lazy with the nazis..
But in my defence i was nearly a prime suspect in the shooting of one years ago in my hometown.
I had come back from out bush and was on the piss with a mate when the nazi got himself shot about 3 doors down from us. (By another nazi in the same group)
I had 2 freshly fired rifles in the back of my ute, went through the roadbolck the coppers set up without being checked…
They were a similar mob to Van Tongeren the killing was over drug money, so a choice mob..
The blokes name was golightly I think.
thefrollickingmole
3 Sep 12 at 9:56 pm
Ahh, so that explains it. The people who reportedly died as a result did not matter because they were not high level …
Helen Armstrong
3 Sep 12 at 10:19 pm
Hear hear! The greater good means SFA when you’re the poor bugger being sacrificed.
Philip Crowley
3 Sep 12 at 10:50 pm
Fisky, a generation at least will be required.
dover_beach
3 Sep 12 at 11:10 pm
Mark Steyn
The Canadians wised up and repealed their section 13. I fear the LNP won’t have the spine to do the same with our section 18C.
There is no such thing as race, it’s a purely artificial construct. We need to remove ALL federal and state race based laws from books. Not just because they have no place in a free society, but also to protect ourselves from enablers like Rubinstein.
CC
4 Sep 12 at 12:27 am
18C is bad law as the definition of offending someone is infinitely subjective. As for Bromberg”s decision; abominable. Totally ideologically motivated. He decided on what Bolt didn’t say, that Bolt “invited people to read between the lines.” You don’t have to read far to uncover that Bolt is not racist. Bromberg refused to see this as he has ideological blinkers. We need more freedom than what we have. The Bolt case is a disgrace and repealing 18C is the only way to rectify the law.
MickRWC
4 Sep 12 at 12:34 am
Mark Steyn on the crowded theatre cliche…
Abu Chowdah
4 Sep 12 at 1:22 am
Early 1970s, in Canberra. There was a NAZI Party candidate standing for election (1972 Federal Election??) for the seat of Canberra. He was a lecturer at Duntroon Military College if my memory is correct. He won around 20 votes, and I think they were all from the Duntroon polling station.
Must admit I got a shock when I pulled his “vote for me” pamphlet out of the letterbox. It was all black with a red swastika in the centre.
old bloke
4 Sep 12 at 2:00 am
TTFY
Rococo Liberal
4 Sep 12 at 10:18 am
If I can’t say it I still will think it.
And find like minded people too.
Even if you dont want this to happen.
Lots of top people get eliminated by such small groups over the centuries.
john malpas
4 Sep 12 at 11:12 am
On another note;
I am surprised that it is Jewish people recommending the banning of free speech and, even worse, applying the law the law to stifle it.
Would have thought their history would give them an appreciation of how necessary free speech is to freedom from persecution.
kevin
4 Sep 12 at 12:57 pm
Even the law of libel is hardly a fixed construct. Look at the difference between the law here or in the UK (where it mainly protects the rich and famous) as opposed to in the US, where the starting presumption is the right to free speech.
All laws which ban ‘vilification’ on spurious grounds like race, religion, ethnicity, gender etc are an abomination. If someone feels that they have been defamed or injured, let them sue, so that they have to demonstrate a link between what was said and what (if anything) happened to them as a result.
The applicants in the Bolt case could have sued for defamation if they could demonstrate adverse consequences unsupported by the facts of the matter. Not surprisingly, they chose the soft route, where all they had to do was say “waaa, my feelings have been hurt”. Disgraceful.
johanna
4 Sep 12 at 5:58 pm