The 'Pub Test' Isn't Good Law


The Andrew Bolt case has revealed an uncritical and jingoistic attitude towards the freedom of speech in the media and blogosphere.

Are people entitled to live in a society which does not attack them on grounds of race? In an inclusive, liberal, tolerant society, to what extent am I protected from the media conjuring a controversy about my identity? Instead of asking these questions, media commentators have done little but sloganeer the wonders and magic of free speech. These commentators assert that it is frankly absurd to restrict free speech just because some people (cough, minorities, cough) might get offended. Of course they would — restricting their ability to publish inflammatory and controversial content about you strikes at the heart of their business model.

Commentators as disparate as Chris Berg in the SMH, Chris Merritt in The Australian, Margaret Simons in Crikey, and Jonathan Holmes in The Drum rely on the assumption that the media’s right to say whatever it likes about whomever it likes is sacrosanct.

The title of Simons’ article is "Why we have to hope that Andrew Bolt wins his case". A careful analysis of the article shows that the first pronoun ("we") in the title refers to her and her media chums. She certainly doesn’t mean the rest of us. She writes:

"If that precedent [in the Bolt case]is to the effect that we must not offend people when talking about race, then all those involved in publishing and reading will rue the day."

Rue the day! Verily, if they are unable to make your ethnicity a topic of conversation, there will be gnashing of teeth in the publishing houses. Editors will wear sackcloth and rub ashes into their hair.

Simons’ article twists itself in knots trying to show how the racial discrimination law is somehow different to legitimate infringements of that most fundamental human right — the right to publish objectionable nonsense about everybody else:

"Of course, freedom of speech is not absolute, and there are limits. For example, we have the laws of defamation, and censorship, and there are other laws that deal with things such as incitement to violence. But the law of defamation does not prevent publication. It allows those who have been defamed to seek compensation."

Defamation law works as a deterrent against damaging reputations. It is supposed to encourage self-censorship under penalty of getting sued by the people you would otherwise defame. Claiming that it’s merely a compensation system suggests that Simons thinks the defamation is some kind of royalties system: you have the right to damage the reputations of others, but you’ll just have to compensate the besmirched party.

Further, you can seek an injunction to prevent defamatory material from being published. Get yourself a good lawyer and you can suppress defamatory material long before it’s splashed across the front pages.

Jonathon Holmes goes further. Claiming that the "law of defamation is restrictive enough without piling more restrictions on freedom of speech", he asserts:

"Offending, insulting or humiliating people on the grounds of their race or ethnicity is undoubtedly a bad thing to do, especially if there are no reasonable grounds for doing it. But an unlawful act? Come on.

"We don’t have an Act of Parliament that says it’s unlawful to offend people on the grounds of their religion, or their sexual orientation, or their hairstyle, or their profession. Nor should we."

Because, as we all know, comments about haircuts are just as upsetting as comments about your ethnicity/religion/sexual orientation. Trivialising "offensiveness" as "hurt feelings" feeds the idea that the media ought to be permitted to say whatever it likes and that everybody else (that is, we the people) needs to "man up" (the classy use of gendered language in this context is courtesy of Professor James Allen from the University of Queensland, writing in The Australian).

Underlying defamation law is the idea it is possible to do harm to a person’s reputation. In other words, you can harm a person in more ways than merely physically harming them. If we accept that defamation law is not a terrible thing, it is not a stretch to argue that there are some kinds of opinions which people should not have to tolerate. Why should we just grin and bear it when people use their extraordinary social power to launch unjustified attacks? Why should we demand other people just grin and bear it when the same happens to them?

Simons argues for a "pub" test. While Bolt might be obnoxious, "[y]ou’ll find the same things said in most pubs." After all, "we" (whoever that might be) "should worry if we are going to start prohibiting people from publishing views that, while we strongly disagree with them, are common in the wider society."

I’m not sure when Simons was last in a pub. The last time I was in a pub, I was treated to opinions ranging from "Why we should shoot at asylum seekers to discourage them from coming here" through to "Jews are really running the planet".

Instead of stating — accurately, sensibly, rationally — that these sorts of opinions do not have a place anywhere in civilised society, Simons thinks that these ignorant, beer-fuelled slurs justify their repetition in the mainstream media. While they might be uttered in pubs, they shouldn’t be. There’s no place for those views anywhere, not even in pubs. Our nation’s media is not a giant pub.

So why the media storm in support of Bolt? Could it be that if you’re an influential, substantial somebody (like, for example, a media personality), you’re more likely to have people sue you for racial vilification? Technically, the average blogger or email forwarder can get sued, but we live in Reality Land where the effort isn’t worth the gain.

So if the pundits can convince you that racial vilification law is ridiculous and a threat to your freedom of speech, they’re protecting their own interests. It’s another example of the media wanting unfettered rights without having to accept responsibility. There are no good reasons why Bolt should be allowed to say what he did beyond the boohoo-ery of media personalities who think that their "rights" outweigh their responsibility to maintain an inclusive, civilised polity.


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