Sticks and Stones: Freedom of Speech and Racial Discrimination

Are we the subjects of rulers anxious to protect their citizen’s ideas from being challenged, hovering overhead like a mother to her child on the first day of school? Do we all need to develop greater mental strength and meet criticism, and our critics, directly and without interference? Are we allowing good ideas to be repressed in exchange for the protection of uniform thought? Have we created a world in which one’s options for individual thought and expression are limited to this or that flavour of the same product?

The proposed repeal of Section 18C of the Racial Discrimination Act is based on such questions about the ideal extent of free speech. Although the principles underlying these questions have been hinted at, no detailed assessment of these principles, or opposing principles, has been attempted. Recent court judgments applying Section 18C allow an assessment of how these competing principles are balanced and whether change is needed.

Freedom of Speech in Australia

The Implied Constitutional Right and its Limits

The Australian Constitution contains no express right to freedom of speech. Instead the High Court of Australia has found that the right must be implied from the principles of democracy espoused by the Constitution. Judgments in the cases of Nationwide News Pty Ltd v Wills, Australian Capital Television Pty Ltd v Commonwealth, Theophanous v Herald and Weekly Times and Lange v Australian Broadcasting Corporation stepped out the basis for, and the limits to, the Australian right to freedom of speech.

For a democratic state to work all people represented by the governing body must be able to assert their will on the body’s policies and actions. Without the ability to freely assert an opinion, the subjects lose their ability to influence those that govern them. Most significantly, those people who hold points of view dissimilar to those who govern, or to the majority of people, lose their ability to participate in society. Brennan J said (at page 47) in Nationwide News Pty Ltd v Wills that:

“To sustain a representative democracy embodying the principles prescribed by the constitution, freedom of public discussion of political and economic matters is essential; it would be a parody of democracy to confer on people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments.”

In the Court’s view, the right is more shield than sword; it can be used to fight prosecution pursuant to a law that reduces free speech but cannot be pleaded as the basis of a claim against another.

The breadth of topics for discussion that are covered by the right go beyond speech related to an upcoming election. Instead:

“there are no limits to the range of matters that may be relevant to debate in the Commonwealth Parliament or to its workings. The consequence is that the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particular matter at a given time might appear to have…little or no connection with Commonwealth affairs.” (Mason CJ, Australian Capital Television Pty Ltd v Commonwealth, page 139)

On whether the right is amenable to restriction and, if so, when, the Court distinguished the Australian implied right and jurisprudence on the American First Amendment. The judges consistently found that public speech could be limited, so long as the restriction was in aid of a compelling competing interest (particularly the interest of preserving an “ordered society or for the vindication of the legitimate claims of individuals to live peacefully in such a society”, Deane & Toohy JJ, Nationwide News at page 77) and the limitation only restricted speech to the extent necessary to protect that interest.

Unlike the Unites States, where ample jurisprudence exists confirming that public speech is sacred and not to be limited, the Australian right is seen as important but limitable where a competing and equally valid interest may be trampled by an unquestioning commitment to speech.

Section 18 of the Racial Discrimination Act 1975

A notable limitation to freedom of speech is cut out by Section 18C of the Racial Discrimination Act 1975. This Section states that:

(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.

This section restricts all speech that may offend a person or a group of people because of their protected attributes. To ensure balance between the need to eliminate offence to people on one or more these basis with the need to allow democratic debate, Section 18D provides a number of exceptions:

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.

The exception for fair comment on a matter of public interest made reasonably and in good faith is important in the context of speech intended to persuade readers. It attempts to draw a line between speech which is merely hurtful to a person’s or a group of people’s self-identification, and speech which may be hurtful for those same reasons but retains its credibility as making a positive contribution to public debate. The balance sought correlates with the balance required by the High Court to ensure the constitutionality of the legislation.

The application of Section 18C

The bones of the legislation have been built upon by the common law, giving it substance and, by closer and closer approximations, attempting to deliver the outcomes the legislation aims to provide.

The judgment in the case of Eatock v Bolt provides a sound basis for examining how the Court has drawn the line between speech that infringes on Section 18C and that which is protected by Section 18D. It is a true test of whether the legislation walks the constitutional line successfully. Further, this case appears to be the first cause in effecting the current attempts to change the legislation to remove the protection afforded by Section 18C.

Andrew Bolt writes opinion pieces for an Australian newspaper. In 2009 he wrote two pieces which were the subject of a complaint under Section 18C. The articles alleged that a number of Australians with white skin but Aboriginal ancestry were part of a trend of people with similar characteristics who identified as Aboriginal instead of identifying with their, say, European background. It was alleged that they did this for the purpose of gaining either political or professional advantage. The complaint made was that the article insulted and demeaned white skinned Aboriginals, implying that there are not genuine Aboriginals.

In the Court’s judgement a number of important factors affecting the types of speech captured by the prohibition were discussed.

Harms covered by Section 18C

The first matter of importance was how significant an act must be to offend, insult, humiliate or intimidate; the importance lying in whether causing a minimal offence will be captured and therefore how careful the commentator must be in pitching their speech. Bromberg J found, relying on earlier authorities, that:

“…the section is concerned with consequences it regards as more serious than mere personal hurt, harm or fear. It seems to me that s18C is concerned with mischief that extends to the public dimension. A mischief that is not merely injurious to the individual, but is injurious to the public interest and relevantly, the public’s interest in a socially cohesive society”. (paragraph 263)

and further that:

“the conduct caught by s18C(1)(a) will be conduct which has “profound and serious effects, not to be likened to mere slights””. (paragraph 268).

This definition, requiring a minimum level of harm, ensures that only speech that causes an effect on a group or a person’s race or ethnic background to the extend that social cohesion is threatened will be scrutinised.

Bromberg J evaluated the articles written and found that the emotive language and general tenor of the articles were such that the message conveyed to the reader would have serious negative consequences on the treatment of the complainants and regard for white skinned people identifying as Aboriginal in public. As a result, Bolt was found to have caused offence at the level required to be sanctioned unless it fell within one of the exceptions.

Fair comment exception

The claim was defended, at least in part, on the basis that the articles were protected under Section 18D. They were argued as being comments made reasonably and in good faith and were fair comment on a matter of public interest. The defence argued that the divisive nature of the trend of people unscrupulously obtaining advantage as a result of their claimed Aboriginal identity, and the resultant devaluing of assistance provided to black-skinned Aboriginals in comparison, were issues of public interest.

When assessing whether the fair comment exception applied the Court said that this exception was the same as the fair comment defence to defamation proceedings. This step led the Court to assess the freedom of speech/freedom from offence balancing dilemma using prior authorities from defamation cases that had already grappled with the difficult task:

“The right to be free of offence gives way to the reasonable and good faith exercise of freedom of expression. The right to freedom of expression is limited to its reasonable and good faith exercise having regard to the right of others to be free of offence. The requirement of proportionality does not involve the subjugation of one right over the other and is consistent with achieving a balanced compromise between the two.” (paragraph 350).

Fair comment in defamation jurisprudence is particular in choosing what statements it covers and what it avoids. The defence does not require strict proof of accuracy and truth, the High Court having previously pronounced that the fair comment defence extended to those that reasonable people would consider abhorrent.

Speech gains protection only if it is genuine comment and can be recognised as such; it does not cover statements of fact or comments that appear to be made as if they are fact. To ensure that a comment is identified as such, the common law defence requires that the facts underpinning the comment are “expressly stated, referred to or notorious” (paragraph 355). Only then can the reader weigh the value of the comment against the facts presented, and not be led to believe the comment is factual in itself.

The safeguard built on this reasoning is that comment, when provided with the supporting facts, can be assessed as such by the reader against the stated facts. Any assertions made are clear to be just assertions which the reader can evaluate. It avoids the reader being convinced of an opinion as if it were fact itself. Drawing on the judgment of Bingham LJ in Brent Walker Group Plc v Time Out Ltd:

“The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right. It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature. Thus the law has developed the rule…that comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated”. (paragraph 375).

Even where the facts stated are not found to be completely correct the defence can be applied, particularly so where the issue being addressed is of high importance. Where reasonable effort is made to obtain correct information and the article is written in a reasonable manner (for example, making concessions where a background fact couldn’t be verified or denied) and where offence to the person or people being criticised is done in a matter that minimises the harm to their reputation, the defence can still be used.

The decision on whether Bolt’s conduct met these criteria can be summarised in the following two paragraphs:

‘In my view, Mr Bolt was intent on arguing a case. He sought to do so persuasively. It would have been highly inconvenient to the case for which Mr Bolt was arguing for him to have set out the facts demonstrating that the individuals whom he wrote about had been raised with an Aboriginal identity and enculturated as Aboriginal people. Those facts would have substantially undermined both the assertion that the individuals had made a choice to identify as Aboriginal and that they were not sufficiently Aboriginal to be genuinely so identifying. The way in which the Newspaper Articles emphasised the non-Aboriginal ancestry of each person serves to confirm my view. That view is further confirmed by factual errors made which served to belittle the Aboriginal connection of a number of the individuals dealt with, in circumstances where Mr Bolt failed to provide a satisfactory explanation for the error in question”. (paragraph 405)


“The tone and gratuitous nature of both the specific and general comments made contributed to the disrespectful manner in which the people in the ‘trend’ were dealt with and contributed to the intimidatory effect of the articles”. (paragraph 412).

Given the serious intimidatory effect and offensive nature of the articles, the failure to present the facts on which much of the opinion was based, the errors in the assertions made (which could have been uncovered easily or by contacting those mentioned in the article), and the unreasonable manner the people mentioned were depicted, the articles were deemed to not fall within the fair comment exception.

The push for repeal

Section 18C, 18D and related provisions have been slated for repeal and replacement by a new section proposed in the exposure draft titled Freedom of Speech (Repeal of S. 18C) Bill 2014.

If passed, the Act would reduce protection to racially motivated acts which vilify or intimidate. Unlike the current legislation the meaning of intimidate is limited to fear of physical harm to person or property and not intimidatory behaviour in the broader sense. There is no protection, such as in the current Act, from speech that is insulting or offensive.

A wide exception exists for any speech that is made “in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”. Given the High Court’s previous wide definition of political discussion, it would seem that most public speech will be covered by this exception.

The tension between the rights to freedom of speech and freedom from offence has for long been a tug-of-war, each side having their own view on the most important values society should hold. The next section will investigate these justifications, drawing largely on writings from the United States where the tension between freedom of speech and ‘hate’ speech has played out in many court rooms.

The conflicting rationales

There would appear to be little doubt that constitutionally the Racial Discrimination Act is valid; although not tested by the High Court, the reasoning in Bolt appears in line with the reasoning in defamation cases such as Theophanous as to what speech repression is allowed.

But the Constitution would allow the repeal of the Section 18C protection. The choice must be made legislatively as to where we want the line to be drawn. Such a choice requires an examination of what is sought to be protected in both scenarios.

The case for unrestricted free speech

Historical events, such as religious dogmatism in the face of the scientific enlightenment, demonstrate in a vivid way the effects of the loss of the right to criticise the workings and organisation of society. The repression of minorities in favour of the majority and similar strict utilitarian societies in the past have the same effect of awakening the libertarian in us all. There are, from what I see, three main and interconnected reasons why some hold concerns about any restriction on the right of individuals to speak whatever they wish.

The pursuit for the discovery of truth

The story of Galileo Galilei discovering evidence and proposing a theory which bucked the earth-centered view of the universe prevalent at the time, and particularly the backlash against it by the then all-powerful Catholic Church in favour of maintaining earth-centric dogma, resonates with anyone who holds an opinion they believe to hold the truth. The fear of repressing an idea that may turn out to be correct ignites protest from the intellectual rebel.

This truth-seeking function of the First Amendment protection of speech leads the United States Supreme Court to consistently protect all speech that contributes to the ‘marketplace of ideas’. By allowing all public statements of ideas (save those that cause a “clear and present danger” of immediate physical harm to those receiving the statements), the public can then engage in debate and discover the truths of the world. Any attempt by authority to limit the content of a particular idea is expected to distort the final conclusion.

Robert Post cites part of the judgment in the case of Terminiello v Chicago 337 U.S 1, 4-5 (1949) on point:

“A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute…is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest…There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups”. (page 304, footnote 181)

Such thinking traces back through history to the struggles of overcoming government censors to promote new ideas. Cato’s letter No. 15, published in 1720 by Thomas Gordon that:

“Without freedom of thought, there can be no such thing as wisdom; and no such thing as publick liberty, without freedom of speech”.

The same phrase is quoted in Bromberg J’s judgment in Eatock v Bolt  (paragraph 226) but attributed to Benjamin Franklin in 1752.

The free marketplace not only allows ideas to be communicated but also allows those ideas to be tested. In doing so, those ideas that withstand scrutiny will be all the more persuasive. John Stuart Mill’s essay On Liberty raises both issues of speech suppression:

“The greatest harm done is to those who are not heretics, and whose whole mental development is cramped, and their reason cowed, by the fear of heresy. Who can compute what the world loses in the multitude of promising intellects combined with timid characters, who dare not follow out any bold, vigorous, independent train of thought, lest it should land them in something which would admit of being considered irreligious or immoral.” (page 94 of  Utilitarianism, Liberty and Representative Government by J.S. Mill, published as part of the Everymans Library for J.M. Dent & Sons Ltd, 1948)


“If even the Newtonian philosophy were not permitted to be questioned, mankind could not feel as complete assurance of its truth as they now do. The beliefs which we have most warrant for have no safeguard to rest on, but a standing invitation to the whole world to prove them unfounded.” (pg 83)

The rejection of restraint to avoid dogmatic adherence to present ideas of how nature and society works or should work is a valid one. It is certainly the value that perpetuates scientific discovery. But further to advancing this ideal, it also flows into the following reasons for the need for restraint of speech to be minimal.


The ability for a community as a whole, and each individual in it, to arrive at their own conclusions on an idea are intertwined, at least in theory. How individuals view themselves and conduct themselves are the result of the principles and practices that are threaded through the community as a whole. How a community conducts itself is in turn, perhaps paradoxically, dictated by the principles and practices of all the individuals that make it up.

I don’t wish to labour only on the words of one man, but Mill’s statement of individuality has poignancy and brevity:

“It is not by wearing down into uniformity all that is individual in themselves, but by cultivating it, and calling forth, within the limits imposed by the rights and interests of others, that human beings become a noble and beautiful object of contemplation; and as the works partake the character of those who do them, by the same process human life also becomes rich, diversified, and animating, furnishing more abundant aliment to high thoughts and elevating feelings, and strengthening the tie which binds every individual to the race, by making the race infinitely better worth belonging to”. (page 120-121)

Of course, Mill’s reference to ‘race’ was to the human race. The need for unfettered speech to allow people to determine their own conduct and the conduct of the community is a necessity. There is no role for government to play in the development of both save to ensure that government doesn’t encroach on the marketplace of ideas. Ideas need to be available for trade and all who wish to contribute to or receive wisdom from this market be free to do so. In discussing the tenor of American judgments on First Amendment application to hate speech, Massaro wrote that:

“The approach to hate speech that is most familiar to contemporary Americans is that urged by the civil liberties theorists. Their argument, which urges broad protection of offensive expression, hinges on faith and fear. The faith is in peoples’ capacity to withstand, reject, or fob off insults, or to engage in critical and effective counterexpression. The fear is of people’s tendency to define the category of offensive ideas too broadly and idiosyncratically, so as to suppress important criticisms of orthodoxy and to curtail revolutionary possibilities and individual creativity.” (page 222)

The effect of free expression and counterexpression is expected to result in the development of an agreement or common view on an issue. Enforcing restrictions on public speech in the name of what is ‘right’ is considered intolerable as,:

“Since no one can know in advance what is in the public interest (at least before the legislature votes), people must be free to speak their mind on any subject and advocate any position, no matter how ridiculous or wicked it may appear to others. Regulation of speech henceforth must be confined to issues of procedure – that is, where and when one may speak – to ensure that debate on the great issues of the day takes place in an orderly manner.” (Balkin – Some Realism about Pluralism: Legal Realist Approaches to the First Amendment, page 294)

The ability to freely exchange ideas without fear or reprisal and the ability of people individually and collective to develop from that exchange leads to the final defence of the right: the preservation of democracy.

Preservation of democracy

The suppression of speech has been seen in history to result in the oppression of people; this still occurs in many countries. The ability to control dissent fails the test of what constitutes a democracy. Democracy requires the people to decide what is right and wrong, good and bad, and it is through the expression of ideas that the democratic society flourishes. It is this freedom in the marketplace of ideas that allows the attainment of the public self-determination, which in turn deems the society a democratic one. Richard Delgado cited an earlier argument by a Professor Emerson in Toward a General Theory of the First Amendment that:

“In a democracy, as Professor Emerson argued, all members of society must be permitted to voice their opinions so that the government’s authority is derived in fact “from the consent of the governed”.”  (page 178)

The case for restriction of harmful speech

Racial speech causes a harm that must be protected against

In response to the libertarian argument that only speech that causes a clear and present danger of harm should the restricted, proponents of restriction argue that there is palpable harm caused to the individual and the group of people that hate speech is directed at. The alleged harm is to self-identity and self-worth, both in the individual and in the group.

As the basis for his proposal for a right of action in tort for racial insult, Delgado (above) listed some notable harms of racially motivated speech.

“The racial insult remains one of the most pervasive channels through which discriminatory attitudes are imparted. Such language injures the dignity and self-regard of the person to whom it is addressed, communicating the message that distinctions of race are distinctions of merit, dignity, status and personhood. Not only does the listener learn and internalize the messages contained in racial insults, these messages color our society’s institutions and are transmitted to succeeding generations”. (page 135-136)

“Social scientists who have studied the affects of racism have found that speech that communicates low regard for an individual  because of race tends to create in the victim those very traits of ‘inferiority’ that it ascribes to him.” (page 146)

Recognition of psychological illness and the effects of bullying on psychological stability has increased dramatically over the last few decades. Legislation and regulation has increased over the denigration of others, particularly in the workplace. The harm of words is no longer considered to be ‘mere slights’ where they have the potential to cause serious psychological harm and, on this basis, it is argued that such speech should be required to defer to the right to be free from harm.

Reduces equality between groups and therefore equality in speech

On the basis of the harm caused, debate about the application of the First Amendment has played out in the context of how it should be balanced against the rights contained in the Fourteenth Amendment and the right to equal treatment enunciated in Brown v Board of Education.

The argument from equality is grounded in the difference between procedural equality for all people and substantive equality between all people, somewhat in the vain of the Anatole France dig at the fairness of procedural equality that:

“In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread”.

Ensuring that no speech is denied can paradoxically result in speech being practically denied or relegated in its force and appreciation. This is particularly so where a person or minority group of people is maligned on a basis other than merit to the effect that an expression made by them, whether of an idea or rebuttal of an idea circulating in the marketplace, may be considered little more than stock of ‘junk’ status. Where the derogatory speech is allowed to continue it can seep into the general consciousness of the people and fester to the point of being indistinguishable as a mere opinion but take on the status of fact.

“Equality is not merely a matter of identical social and legal treatment of individuals, but it also must take into account inequalities in legal and social outcomes with the historical maldistribution of social goods and political power”. (Massaro, above, at page 241)

and following on from the lack of substantial equality, Balkin (above at page 397) describes the resultant effect on the debate of ideas:

“Although the form/content distinction allowed “dangerous” speech to be protected, this guarantee of liberty promised only a formal liberty of speech and only a formal equality of opportunity for its exercise. Yet as is often the case, guarantees of formal liberty and formal equality generally favor those groups in society that are already the most powerful. Guarantees of formal liberty and formal equality generally do not guarantee, and indeed may sometimes even thwart, substantive liberty and substantive equality.”

As with the argument that debate between equals enhances democracy, so it is argued that the silencing effects that a lack of substantive equality entails will result in the inability of the democratic body from determining itself in a manner representative of all people within it. Whilst it may appear that all are treated equally and, from a procedural perspective, they are, the minority are at an increased likelihood that malicious speech against them will not be easily fought with counterexpression. In his article Dignity and Speech: The Regulation of Hate Speech in a Democracy, Alexander Tsesis argues this line:

“Hate speech is a threatening form of communication that is contrary to democratic principles. It not only asserts personal opinion but also aims to prevent segments of the population from participating in deliberative decision making.” (page 501)

and finally and more generally that:

“The First Amendment is designed to allow for open debate, encompassing popular, controversial and unpopular points of view. In and of itself, speech is a neutral medium that can just as easily promote fascism as democracy, justify genocide as it does enjoyment of civil rights.” (page 512)

Racist speech does not add any meaningful ideas to the marketplace 

 “Racist and sexist speech is hard to defend…the civil libertarian  cannot in his or her heart truly imagine that the speech of the Ku Klux Klan or the Nazis can have any redeeming social value. The libertarian is forced to defend racist and sexists on the pure market principle that the lack of any discernible redeeming value does not matter”. (Massaro (above), page 175)

Attack on unrestrained speech is also directed at the notion that there are no bad ideas and that the body politic must not weed out ideas that it considers bad. It is argued that lack of value in the idea expressed combined with the harm caused to the people subjected to the opinion and to the ideals of an equal society should result in restraint being applied.

The basis of the claim that there is no value in racist ideas appear to arise from the assumption that those who express an idea with hallmarks of racism do not seek to inform or convince the reader (Delgado, above, at page 177). Instead, the aim is to intimidate and exclude the identified groups from enjoying their political rights (Tsesis, above, page 504) and to allow such speech does nothing but preserve and reinforce the rights of racist speakers and the maligned status of the targeted (Tsesis, page 508). The harm to victims of hate speech is serious, and the value to society in allowing this speech is slight (Massaro, page 234).

This compounding of negative effects on people and on the marketplace of ideas entrenches the ideas as reality, distorting the possibility for finding truth:

“Stereotypic beliefs form the rationale for feelings of disdain and disparagement. When tied to prejudiced attitudes, stereotypes help create a number of behaviours ranging from avoidance to violence. Our review of stereotypes indicates that one’s perceived reality is not reality itself, but is a mixture of fact and fiction, if not total fiction. Yet when people act upon these stereotypes, the actions are carried out in the real world, not in their stereotypic world… The source of prejudice are varied. But regardless of how and why prejudices form, the fact remains that, like seeds, prejudice takes root, grows and blossoms into what may become violent hate.” (Tsesis, above, page 520, quoting Kleg, Hate Prejudice and Racism)

The combined effect of these complaints against unregulated free speech is that the expression of racist opinion contains no or very little inherent value as a truth-seeking expression, but does have the effect of injuring those it is directed at and appealing to prejudices held by others. These in turn can lead to those harmed by the initial speech to shy away from defending themselves or expressing their own opinion and, if they do, the opinion having less consequence due to a reduced value being place on that person’s opinion.

Where should the line be drawn?

There is an obvious tension between the two positions. One one hand, the fear of rejecting truths and of empowering a government over its people held by libertarians are valid, as is the need to promote equality of people in plural societies and avoid the harm caused by hate speech. As Post said at the end of his essay which ultimately defended the freedom of racist speech from repression:

“The strict implication of this essay, then, is not that racist speech ought not to be regulated in public discourse, but rather that those who advocate its regulation in ways incompatible  with the value of deliberative self-governance carry the burden of moving us to a different and more attractive vision of democracy” (Post, above, page 326)

This challenge is fair enough given what is at stake. So, here goes.

Shrug off the insult and fight back

Given the ill-effects of racism on targeted groups and the likely flow-on effects to their participation and contribution to democracy, to argue that the ill-conceived racist expression is best dealt with by counter-expression is as equally ill-conceived as the racist expression itself. Countering racist opinion is unlikely to result in the minority of people who continue to cling to racist values changing their mind or result in some future unanimous societal consensus that racism is bad. Even if such was possible, the immediate harms caused to victims can only be seen as putting the right to express (not the right to hold) a perverse, antiquated and illogical opinion above the right not suffer injury at the hands of another.

The ‘clear and present danger’ exception used in the United States only protects people from immediate physical harm or the fear of such harm. This may accord with what was in the head of J.S. Mill when he said that the right should only be restricted where there it causes harm. But we are more understanding of mental harm; the damage it does to the person, to the people around them and to communities of people. I don’t think it unethical or a failure of logical argument to not cite scientific studies of this point, and instead point to the mounting public knowledge of mental illness and the harms of bullying and harassment of victims.

It is not a big leap from balancing freedom of speech against physical harm to balancing that right against the recognised psychological harm of insulting and degrading speech. The argument could be made that one piece of writing or one piece of speech that insults a person or group is not enough to cause a serious harm. But this understates both the effects of the insult on the victim and the effect of the words on how the victim is viewed and treated by others.  Where the insult draws upon deep-seated distrust or prejudice, installed through the historical differentiation of people, there is good reason to believe that the insult will cause immediate harm or will awaken the feelings appealed to in others and result in ill-treatment of the targeted people.

The inherent value argument

I cannot accept the assertion that hate speech has value in the marketplace of ideas or that excluding racist speech could result in us rejecting a sound idea. Through roughly two-and-a-half thousand years of the development of logic and reason, from its birth in Ancient Greece to its domination of scientific discovery today, humans have learned to think critically. We are able separate out ideas that hold some value as an idea ripe for testing and debate from those ideas which are internally devoid of the possibility of having any merit.

Racist speech, at least most forms I can recall and imagine, is rarely if ever any more than an attempt to paint a picture of the group targeted that suits the writer’s argument, and then disparage that picture to gain support from the reader. To the logician this is something like a ‘straw man’ argument. By the writer building his or her own picture of the target, any facts about the target that, if included in the description would negatively affect the opinion being made, can be left out.

The straw man can be as simple and identifiable as the use of the word “Nigger” in a manner apt to reinvigorate the ideas of African-American inferiority, or “Jew” in a manner evoking historical mistrust and mistreatment of those people. Or it can be used to make out an argument that the writer wants to appear as being an opinion based on verifiable facts and made in the public interest, but does little more than spread untruths about the targeted group among his or her readers. In both cases, the straw man painted is an attempt set up the issue to be discussed in such a way that, once the truth of those asserted facts is accepted by the reader, the opinion derived from those facts must also be accepted.

Given such opinions have no true factual basis, the opinions themselves hold no weight as an idea. For an idea to have any prospect of influencing the public, the body politic or an individual in their private lives, the idea must (or at least should) be logically sound. An idea based on false facts is as susceptible to collapse as a building constructed on shifting sand.

If we look at speech based on racist opinions as being, significantly more likely than not, devoid of logical premises, we see that we are not at risk of rejecting good ideas. Instead of weeding out illogical ideas promoting inequality, we would be more apt to concentrate and debate ideas that are more likely to hold some important truth.

There is the possibility, however minimal it is, that an opinion that appears to be racist has some value. This would be particularly so if, as discussed by Bromberg J in the Bolt case, the factual basis of the opinion has some truth. If a blanket ban on any speech which may offend or insult a person or group was enforced, a diamond idea in the rough of its context may be lost.

I admit that it is hard of think of an example to expand upon this point. But lets say that a study showed that a particular group of people, identified by their culture, had a higher incidence of sexually transmitted disease, and the purpose of the study was to give an opinion about action that could be taken. This article may be read by some of the subject group as offensive, implying something derogatory about their sexual conduct. But if the data is tested and appears to be well founded, or at least is sought out with reasonable pursuit for accuracy, the opinions drawn from the data are appropriate and do not imply some fact in the data which is not present, and is written in a manner that focuses on the problem and not an expression of opinion against the group, the opinion should be allowed.

The history of ill-effects of inequality on people leaves little doubt that racist opinions have as much value as an argument that the earth is flat and supported on the back of a turtle. The litany of evidence of the ill-effects of racism on the individual people targeted, the groups insulted and on society in general must lead to the conclusion that an opinion contrary to this evidence must be supported by some very strong evidence. I like the words of the late Carl Sagan:

“Extraordinary claims require extraordinary evidence.” (Carl Sagan, Cosmos)

If the approach to ideas and opinions based on racist values was treated as so unlikely to hold value as historical evidence dictates it will, the libertarian protection of all ideas as having value in themselves must fall away, and rational testing of ideas must result.

The fear of complaint and freezing opinion

The argument that the possibility of being complained against causes people to self-censor must also be addressed. It is reasonable to hypothesise that the fear of being forced to pay to defend what turns out to be a protected opinion  will cause some good ideas to not be publicised at all. But this, I fear, is due to the problems of the legal system itself and the cost of access to it, not of the regulation itself

This problem is already being addressed. Complaints made under the Racial Discrimination Act are made to the Australian Human Rights Commission which aims to conciliate and resolve the complaint. Lawyers need not apply. Only when the complaint is not resolved can the complainant issue proceedings. This possibility, not wanting to withdraw his or her work on the basis of an unfounded complaint unresolved at conciliation, may be of concern. But a commission or tribunal with the power to resolve disputes in a no legal costs setting, similar to some lists in the Victorian Civil and Administrative Tribunal, would reduce this problem.

It must also be noted that compensation isn’t necessarily the aim of the game for complainants. The result of the Bolt case was a retraction of the articles penned and an apology. For many complainants this cathartic act of justice will be enough.

Limiting a complainant’s prayer for relief to such corrections could be considered undervaluing the actual damage done to the targeted people, so changes to the right to compensation would need to proceed with caution. A lack of compensation is equally prone to attack on the premise that it may be financially beneficial for a publisher to attract attention through racist remarks and apologise later where there is no risk of paying damages to those affected. But the sight of the same writer or the same publication having to print full-page retractions and apologies at the same rate that it publishes the articles must have some effect on the hip pocket of those who profit, and on the reputation of the bigots who write the articles.

If we manage to correct the problems with the cost of the legal system, the concern about freezing opinions for financial fear will be largely resolved.

Have faith in the intelligence of all people; to protect is to insult

Libertarians argue that we should not put faith in the government and the legal system to decide right from wrong, and instead they appeal to flattery; people are intelligent and will be able to see through opinions lacking in logic. This appeal must resonate with everyone – no one considers themselves a fool or easily conned.

In an ideal world, this appeal would have significant merit. If all readers were educated to a high level, trained in critical thinking, able to distinguish assertion of fact from assertion of opinion and able to entertain an idea without accepting it; and if all writers were accurate and truthful in setting out the facts they base their opinion on, draw only rational conclusions from the facts and tread carefully where unfair caricatures and insinuations are possible, then racist and other forms of speech would die a natural death.

This may occur in an Utopian society. Given the glaring deficiencies in our society this argument is a straw man in itself; if you accept the initial premise, the conclusion that follows appears valid. But the initial premise is a con.

I am not averse to trying to depict what a Utopian society would look like, however unattainable it may seem. In such a world there is unlikely to be a need for restriction as all writers would see the futility and waste that illogical arguments, appealing to differentiation of people on the basis of some differences in DNA base-pairing, would be. There is no reason to believe we can’t eventually reach such a place in time, but it is not now. We need to strive for substantive equality before bare procedural equality will attain the same outcome.

Richard Rorty, quoted by Massaro in his conclusion on page 265, talks about the preconditions for ultimate freedom of speech:

“‘Free discussion’ here does not mean ‘free from ideology,’ but simply the sort which goes on when the press, the judiciary, the elections and the universities are free, social mobility is frequent and rapid, literacy is universal, higher education is common, and peace and wealth have made possible the leisure necessary to listen to lots of different people and think about what they say”.

If we ever meet such an ideal of social organisation and cohesion, then government interference would barely be necessary. Until then, legislation must enhance equality and do so by holding public social commentators to higher standards of logic and care.


I do not accept the reasons why American style ambivalence to racism should be tolerated in light of the injury it causes and the lack of possible positive effect it could have. The Constitution allows its regulation within reason and we should do so.

If the thought process of Bromberg J in Eatock v Bolt is the process that all Section 18C cases are decided upon then it is difficult to rationalise the proposition that the section results in the right to freedom from offence being given to much weight compared to the right to freedom of speech. His Honour’s reasoning draws parallels to assessing inflammatory pieces on the logic of their arguments and their efforts to preserve dignity when the opinion strays in to areas that may cause serious harm. But, this is to be expected. The development through the Common Law of the fair comment defence in defamation proceedings has long sought to find the right balance between allowing expression of ideas and restraining harm.

The pitfalls with the costs of the legal system and its possible effect on speech are of some concern, but the initial complaint process under the Act has the effect of eliminating costs when a complaint is initially made. What needs to follow is the ability for a binding decision, using the deliberation process of Bromberg J, to resolve disputes that don’t resolve at the Human Rights Commission in a cheap but effective way.

The procurement of egalitarian values of equality must be assisted. If we should reach an age where equality truly exists then the libertarian argument for procedural equality only will be valid once more. Hopefully we can one day meet that objective.



Woman’s Estate by Juliet Mitchell

Here is my second post consisting of extracts from books I have found enlightening or instructive in understanding a particular topic. Woman’s Estate by Juliet Mitchell defines the historical, current and future struggles of the fight for equality between the sexes and the issues that continue to be hostile to equality being achieved, particularly in a capitalist society.

As I suggested last time, only a full reading of the book can do justice to the detail of the arguments and reasoning behind these extracts. I highly recommend committing the time to reading this work.

I have again attempted to ensure that the extracts provide the context within them but have also included my own subheading to provide further clarification. All italics are the author’s.

Woman’s Estate by Juliet Mitchell (Pelican Books, 1971)

(The historical basis of the movement and connection with similar movements)

“The most economically and socially underprivileged woman is bound much tighter to her condition by a consensus which passes it off as ‘natural’. An Appalachian mother of fifteen children experiences her situation as ‘natural’ and hence inescapable: a college-educated girl spending her time studying ‘home economics’ for an academic degree is at least in a position to ask ‘why?’.” (pg 22)

“Working-class consciousness cannot be genuine political consciousness unless the workers are trained to respond to all cases of tyranny, oppression, violence, and abuse, no matter what class is affected.” (pg24)

“‘Totalism’, then, is the expression of the protest against all oppressed conditions in the form of an assertion of complete liberation involving the overthrow at one blow of the whole  of capitalist society”. (pg24)

“The university has become the training ground for agents of the consumer society. Students are no longer students in the classical sense of the term. University courses cling vainly to an inappropriate tradition against whose conservative content students protest, while courses introduced to fit organically into their future jobs reveal a banality that condemns both themselves and those jobs.” (pg 25)

“women’s oppression manifests itself in economic and cultural deprivation, that oppressed women are found in all exploited minorities, in all social classes, in all radical movements. That on the issue of the position of women, friends are foes.” (pg 39)

“The sexual exploitation of women and their enforced submission within a society committed – when it feels like it – to the ‘naturalness’ of their reproductive role, has caused the movement to develop the notion of the ‘control of one’s body’. This slogan finds its meaning somewhere between ‘having control of one’s own thoughts’ (i.e. freedom of mind) and ‘workers’ control’ (worker-run factories).” (pg 55)

“‘patriarchy’ is all-pervasive: it penetrates class division, different societies, historical epochs. Its chief institution is the family: having the shakiest of biological foundation, ‘patriarchy’ must rely instead on ‘inherited’ culture and the training of the young. It endures as a power system because it is so well entrenched that it hardly needs to be visible, invoking the ‘natural’ it claims to be irrevocable.” (pg 65)

“Her biological status underpins both her weakness as a producer in work relations and her importance as a possession in reproductive relations.” (pg 82)

(On feminist theory)

“Feminism  unites women at the level of their total oppression – it is all-inclusive (cf. Black Power and ‘totalism’). Its politics match this: it is a total attack. The theory backs this: the first division of labour was the first formation of oppressor and oppressed – the first division of labour was between man and woman. The first domination must be given priority – it must be the first to go.” (pg 87).

“Amoeba-like, radical feminism, would ingest Marxism. The historical basis is not the economic determinism of the classes but the natural division of the sexes which precedes this”. (pg 87)

“As the elimination of economic classes requires the revolt of the economic ‘underclass’ (the proletariat), so the overthrow of the sexual classes similarly demands the revolt of its underclass (women). In both cases the revolution is not conquer privilege but to eliminate distinction.” (pg 88)

(The position of women)

“Women are exploited at work, and relegated to the home: the two positions compound their oppression. Their subservience in production is obscured by their assumed dominance in their own world – the family. What is the family? And what are the actual functions that a woman fulfils within it? Like woman herself, the family appears as a natural object, but is actually a cultural creation. There is nothing inevitable about the form or role of the family, any more than there is about the character or role of women. It is the function of ideology to present these given social types as aspects of Nature itself.” (pg 100)

“The ideology of ‘woman’ presents her as an undifferentiated whole – ‘a woman’, alike the world over, eternally the same. Likewise the ‘concept’ of the family is of a unit that endures across time and space, there have always been families….Within its supposed permanent structure, eternal woman find her place. So the notion goes….Any analysis of woman, and of the family, must uncoil this ideological concept of their permanence and of their unification into an monolithic whole, mother and child, a woman’s place…her natural destiny. Theoretical analysis and revolutionary action must destructure and destroy the inevitability of this combination.” (pg 100)

(Physical Weakness and Coercion)

“historically it has been woman’s lesser capacity for violence as well as for work, that has determined her subordination. In most societies woman has not only been less able than man to perform arduous kinds of work, she has also been less able to fight. Man not only has the strength to assert himself against nature, but also against his fellows. Social coercion has interplayed with the straightforward division of labour, based on biological capacity, to a much greater extent than is generally admitted. Women have been forced to do ‘women’s work’.” (pg 103)

(The Reproduction of Children)

“Women’s absence from the critical sector of production historically, of course, has been caused not just by their assumed physical weakness in a context of coercion – but also by their role in reproduction. Maternity necessitates withdrawals from work, but this is not a decisive phenomenon.  It is rather women’s role in reproduction which has become, in capitalist society at least, the spiritual ‘complement’ of men’s role in production. Bearing children, bringing them up, and maintaining the home – these form the core of woman’s natural vocation, in this ideology. This belief  has attained great force because of the seeming universality of the family as a human institution.” (pg 106)

“The notion that ‘family’ and ‘society’ are virtually co-extensive or that an advanced society not founded on the nuclear family is now inconceivable, despite revolutionary posturings to the contrary, is still widespread. It can only be seriously discussed by asking just what the family is – or rather what women’s role in the family is. Once this is done, the problems appears in quire a new light. For it is obvious that the woman’s role int he family – primitive, feudal or bourgeois – partakes of three different structures: reproduction, sexuality, and the socialization of children. These are historically, not intrinsically, related to each other in the present modern family. We can easily see that they needn’t be For instance, biological parentage is not necessarily identical with social parentage (adoption). Thus it is essential to discuss no the family as an unanalysed entity, but the separate structures which today compose it but which tomorrow may be decomposed into a new pattern.” (pg 107)


“Once child bearing becomes totally voluntary (how much so is it in the West, even today?) its significance is fundamentally different. It need no longer be the sole or ultimate vocation of woman; it becomes one option among others.” (pg 108)

(Reproduction and Production)

“Unlike her non-productive status, her capacity for maternity is a definition of woman. But it is only a physiological definition. Yet so long as it is allowed to remain a substitute for action and creativity, and the home an area of relaxation for men, woman will remain confined to the species, to her universal and natural condition”. (pg 109)

“The formal, juridical equality of capitalist society and capitalist rationality now applied as much to the marital as to the labour contract. in both cases, nominal parity masks real exploitation and inequality. But in both cases the formal equality is itself a certain progress, which can help to make possible a further advance.” (pg 113)

(The position of women in the workplace)

“Cultural conservatism by both sexes compounds an economic systems devised to make humanity prey on itself. Men are set against women by their own job insecurity. Only loyalty to traditions of feminine deference saves them. Courtesy unites, by its own hierarchies, what the economy divides.” (pg 127)

“In working-class jobs, women are segregated into ‘women’s work’. In middle-class jobs, women are isolated in ‘a man’s world’. This crucial difference again separates women but this time along class lines. It is difficult for women with such totally different experiences, not just of their class, but of the organization of their jobs, to find common ground either as workers or as women without a Women’s Movement which offers precisely this.” (pg 130)


“Beauty is all, in this epoch of loving and expansive narcissism. He commercial ‘exploitation’ (which comes first?) of this is phenomenal. The ex-Empire (or its remains) has been re-raided to reproduce itself in miniature concentration in Oxford Street: you can eat, dress and adorn – Indian, old Chinese, Arabian, African….And having been offered all possibilities of self-glorification, having produced the sexually radiant you, the commercial dimension of capitalism can re-use you: this time you, yourself, will do to sell the drabber products: cars, washing machines, life insurance. No city in the world boasts such a density of ‘sexual objectification’ on its bill-boards and subway ads, as does London.” (pg 141)

“Illusorily offered the free and glorious expression of ourselves, it turned out to be only for a further alienation: turning ourselves into products which are then confiscated for use in a consumer society.” (pg 142)

“For one of the forces behind the current acceleration of sexual freedom has undoubtedly been the conversion of contemporary capitalism from a production-and-work ethos to a consumption-and-fun ethos.” (pg 147)


“But the family does more than occupy the woman: it produces her. It is in the family that the psychology of men and women is founded. Here is the source of their definition. What is this definition and what is the role of the family in the ideology of it as the basic unit of society today?” (pg 151)

(Ideology of the Family)

“Profits depend more and more on the efficient organization of work and on the ‘self-discipline’ of the workers rather than simply on speed-ups and other direct forms of increasing the exploitation of the workers. The family is therefore important both to shoulder the burden of the cost of higher education, and to carry out the repressive socialization of children. The family must raise children who have internalized hierarchical social relations, who will discipline themselves and work efficiently without constant supervision….Women are responsible for implementing most of this socialization.” (quoted from Peggy Morton: ‘A Woman’s Work Is Never Done’) (pg 152)

“Pre-capitalist society flourishes on individual private property – the peasant has his bit of land, the artisan his tools. Capitalist organization of work deprives the individual of his private property and takes all the separate pieces of private property (land, tools, etc.) pools them, and makes the newly accumulated wealth the private property of a few – the capitalists. The appropriation of individual private property necessitates a form of social organisation of the property (men have to get together to work it) which is simultaneously denied: the mass of men get together to work it, but what they produce and how they produce it is taken by the ‘few’ as their own personal private property. however, the individual private property for the mass of the people does continue side by side with this new process – it continues in the family.” (pg 153)

“”But, of course, the ruling-class interests that pose, in the first place , as universal interests, increasingly decline into ‘mere idealizing phrases, conscious illusions and deliberate deceits….But the more they are condemned as falsehoods, and the less they satisfy the understanding, the more dogmatically they are asserted and the more deceitful, moralizing and spiritual becomes the language of established society.'” (pg 155)

“In any case, the function of the family is not simply one or the other, it is both: it has an economic and ideological role under capitalism. Roughly, the economic role is the provision of a certain type of productive labour-force and of the arena for massive consumption. This is specifically capitalistic.This economic function interacts with the ideology requisite to produce the missing ideals of peasant, feudal society; a place equally and freely to enjoy individual private property. This ideology which looks backwards for its rationale is,nevertheless, crucial for the present: without it people might hanker back to the past as a ‘golden age’; once Utopianism of any sort occurs, after looking backwards, it is liable to look forwards and thus endanger the status quo. The family, thus,, embodies the most conservative concepts available: it rigidifies the past ideals and presents them as the present pleasures. By its very nature, it is there to prevent the future. No wonder revolutionaries come up with the vulgar desperation: abolish the family – it does seem the block to advance, the means of preserving a backwardness that even capitalism makes feel redundant, though, of course, it is essential to it.” (pg 155-156)

“Of course, the ideological concept of the family embodies a paradox which reflects the contradiction between it and the dominant, capitalist method of organizing production. As I have already mentioned, this method of organizing involves social production (a mass or ‘team’ of workers), and the family provides the relief from the confiscation of this social production by apparently offering individual private property. Now the same contradiction is today contained within the family itself. The family is the most fundamental (the earliest and most primitive) form of social organization. When, under capitalism, it was made to embody as an ideal, what had been its economic function under feudalism, a chronic contradiction took place. What had hitherto been a united unit with the overall diversified social structure became, because of changing social conditions, a divided one. The peasant family works together for itself – it is one. The family and production are homogeneous. But the members of a working-class family work separately, for different bosses in different places and through the family interest unites them, the separation of their place and conditions of their work fragments, perforce, that unity….The social nature of work under capitalism fragments the unitary family; thereby it enforces the social nature of the family itself.” (pg 156-157)

“The Women’s Liberation Movement must have a complex reaction to the nuclear family. It must concentrate on separating out the structures – the woman’s roles – which are oppressively fused into it. It must fragment its unity.” (pg 159)

“What does our oppression within the family do to us women? It produces a tendency to small-mindedness, petty jealousy, irrational emotionality and random violence, dependency, competitive selfishness and possessiveness, passivity, a lack of vision and conservatism. These qualities are not the simple produce of male chauvinism, nor are they falsely ascribed to women by a sexist society that uses ‘old woman’ as dirty term. They are the result of the woman’s objective conditions within the family – itself embedded in a sexist society.” (pg 162)

My earlier than expected break

After committing to posting more articles here I was managing to put some writing out into the ether with regularity, until….

…my second son arrived a couple of weeks earlier than expected! That, along with the reduction in free time that results, probably barely pass as adequate reasons for the transmission break.

At the time I was working on a piece about the proposed changes to the Racial Discrimination Act 1975 by the Australian Attorney-General and how the current law interacts with Freedom of Speech in the wake of the judgment in Eatock v Bolt. The project was becoming bigger than I expected which might have been noticed by my posting of two previously completed university articles.

I’m still researching for the piece, but may post a shorter version in the near future rather than one that includes significant detail about the philosophical basis of the right to freedom of speech, and where critics of such legislation as the Racial Discrimination Act 1975 say the extent of any curtailment of that right lies.

But for the moment, I’ll leave it to this observation:

Donald Sterling made racist remarks in a private telephone conversation which was recorded and leaked to the media. The result was his ban from the NBA for life and a fine $2.5M. Former player and current Mayor of Sacramento, Kevin Johnson, declared that it was message to all bigots that their bigotry will not be tolerated. This has occurred in a country where the right to freedom of speech is of much broader scope than in most countries, but where the general population (at least in this instance) sees the destructive impact on society that can brought about by its abuse.

Where the power of freedom of speech to shape society and empower people by allowing them to question traditional dogma and form their own views is used to defend speech which does nothing but harm others, a line is drawn. This line is built on the acquired understanding over time that unfettered speech used for an inappropriate purpose harms society and citizens, not enhance its aims and give freedom to its people.

Yet, freedom of speech is being used as the argument for why the Racial Discrimination Act should be repealed; it limits the ability of people to freely make racist remarks to the point of them being offensive, insulting, humiliating or intimidating where those remarks are not a fair comment done reasonably and made in good faith. All because a writer in a widely circulated newspaper wrote a number of articles attacking a group of people regarding their identification as Indigenous Australians in a completely misleading manner, and was ordered to publicly apologise. That and because, as Mr Brandis said, “People have the right to be bigots you know”.



Ethics by P.H Nowell-Smith

This is the first of my new series of posts containing selected extracts and quotes from books I’ve been reading.

The topics will fall within the general range of subjects I cover on this blog, from science based topics to philosophy and environment.

All my posts of this nature come with the exhortation that a better understanding of the extracts and the subjects of these books can only be achieved by reading the book, not by relying solely on the parts I’ve picked out as being, in my opinion, the most notable or instructive parts.

Today’s post covers “Ethics” by P.H Nowell-Smith published in 1954.

In brackets I’ve provided the context of the quotes and extracts that follow it, but have attempted to provide extracts that explain the context within the extract itself.

Ethics – P.H.Nowell-Smith – Pelican, 1954

(On theoretical ethics)

“The central phenomenon of ethics is, then, the moral judgement or, as Broad also calls it, the “opinion that something is right or wrong”. It should be noticed from the start that moral judgements are said to be, not emotional reactions or attitudes or expressions of approval and disapproval, but opinions.” Pg 26

“The intuitionists are, in fact, trying to combine in one form of judgement two assets, objectivity and relative incorrigibility. But these cannot be combined since the objective-subjective contrast loses its point if objective judgements are made relatively incorrigible. They use the language of ‘really is’; but the test that they apply to discover whether something really is right or wrong is the test of immediate insight, which is analogous to the test for ‘looks’ and ‘feels’”. Pg 58

(On the logic of Sentences and Arguments)

“Phrases such as ‘speaking offhand…’, ‘I don’t really know but…’, and ‘I should be inclined to say that…’ are used by scrupulous persons to warn the hearer that the speaker has not got what seem to him good reasons for his statement. But unless one of these guarding phrases is used we are entitled to believe that the speaker believes himself to have good reasons for his statement and we soon learn to mistrust people who habitually infringe this rule”. Pg 82

(On reasons for choosing)

“There is an air of tautology about ‘I laughed because it was amusing’, ‘I ran away because it was terrifying’ and ‘I remonstrated because it was an objectionable proposal’ which is absent from explanations in terms of statements of fact. But in spite of this A-sentences do not give complete explanations. This is partly because the explanatory force is inversely proportional to the obviousness of the tautology. ‘I objected because it was objectionable’ implies that I had some reasons for objecting but does not even begin to say what they were.” Pg 119

We often explain both why we did something and why we intend to do something by saying that it is fitting or appropriate to a situation or that it is in accordance with a moral rule. But these explanations are only logically complete if they contextually imply a pro-attitude to doing what is fitting or to obeying the rule; and this, in practice, they always do. But a part of an explanation that is so obvious that it can in practice be left out must not, on that account, be assumed to be unnecessary.” Pg 121

(On egoism and hedonmism)

“To be selfish is not to do what one wants to do or enjoys doing, but to be hostile or indifferent to the welfare of others. It comes out in two ways. (a) A man whose dominant desires were for his own pleasures (in the ordinary, not the philosopher’s sense) and who seldom or never wanted to do good to others would be a selfish man. (b) A man who does what he wants to do or what he likes,, when he does it at the expense of others, is a selfish man, even if what he does is not in itself selfish.” Pg 143

(In the context of G-words – words that imply not merely that the relevant person is likely to have a certain reaction, but that he ought to have it)

“That is not to say that we do not use G-words or ‘ought’ when making up our minds what to do, but that when we so use them we are, as it were, advising, exhorting, or commanding ourselves. If a man prefers one thing to another there is no temptation to represent the situation as one in which two people participate; but we do this quite naturally when a man tells himself that he ought to do something. It is an important fact that, while the personification of Desires is always strained and artificial, it has always seemed quite natural to represent Conscience as a little voice inside me that tells me what I ought to do.” Pg 151

(On advising and exhortation)

“This brings out one general difference between A- and G-sentences. Since the latter belong par excellence to the realm of choosing, advising, and exhorting and since the logic of these activities is such that sentences used to play a part in them must have a pro- or a con-force, G-sentences are always explicitly for or against something. A-sentences, on the other hand, are neutral unless the context shows which force they have. It may not be clear, for example, whether ‘It’s a dangerous (or onerous or responsible) post’ constitutes advice or or against; but ‘it’s a post worth having’ is not so ambiguous.’ Pg 155

‘The Persuasive Theory is an incorrect account of the use of moral language; but it enshrines an important truth. Advising is something that we choose to do and we must, therefore, have some reason for doing it. This reason may be a desire to persuade someone to do something and a man who gives advice (unless he gives it ironically) must, as we have seen, hope that it will be taken. This does not mean, however, that advice can never be disinterested. A man who advises another on the choice of a career may be concerned solely for the welfare of the recipient of his advice, and the farther who gives death-bed advice to his son can hardly hope to gain by it. The Persuasive Theory, but implying that man who gives advice must have an ulterior motive, makes an unfortunate and unnecessary concession to the doctrine that all human action is necessarily selfish.” Pg 157-8

(On exhortation – rhetoric, propaganda or suggestion – technique used by evangelical preachers on emotional congregations and advertisers who instil desires into their victims by suggesting that they already have them)

“It is important to notice that this is a secondary use of language, parasitic on genuine advice; and this fact is fatal to the ‘Persuasive’ Theory of moral language. A man can only learn to seek, accept, and reject advice if, in the majority of cases, accepting the advice does in fact lead to the result he himself desires. … Unless moral words had first been used in a way which connects them with our own interests – whether these be selfish or unselfish – we could never have come to be persuaded or dissuaded by their use and they could not act, as they sometimes do, as levers with which to manipulate the conduct of others”. Pg 158-9

“To tell someone that something is the best thing for him to do is to advise him to do it, but not irresponsibly. The speaker implies that he has good reasons for his advice, that he knows what the problem is and that his advice is relevant. The same predictive and causal elements are present as in the case of A-sentences; and advice may, as before, be given disingenuously, improperly, mistakenly, or unfortunately if one or other of the contextual implications is absent.” Pg 162-3

(On appraising and what we consider good)

“But in many cases the criteria now used are connected to natural criteria only through a long process of change and have become modified to such an extent that their original connexion with natural pro-attitudes has been entirely lost. And in such cases it often happens that we do not use the criteria we do because people have the pro-attitudes they have, but we have the pro-attitudes we have because the criteria are what they are. It may be that on one can now remember exactly why certain criteria were originally chosen to be the standards of judging something to be good or bad of its kind and that people are now prepared to admire, praise, and pat highly for objects because the conform to the accepted criteria, rather than accepting the criteria as ‘proper’ ones because, under them, the things that they admire rate highly. Taste is dictated by fashion, not fashion by taste.” Pg 173

“Sentiments, as Hume noticed, seem to vary in rough proportion to the propinquity of their objects. We are not moved by the iniquity or remote historical characters as we are by those closer to us; and we feel more approval for and sympathy with those near to us than with those who are more remote. Yet our moral judgements do not vary in the same way.” Pg 176

“…moral appraisals must be universal. Anyone who makes a moral appraisal even of a remote character must be willing to apply the same criteria universally. And it follows from this that he must be willing to apply them in practical contexts. If I am not prepared to condemn anyone whose behaviour is like that of Verres in all relevant respects, then, in calling Verres a villain, I am not making a genuine moral judgement; and the relevant respects are all of an empirical, objective kind.” Pg 177

“Ethical Naturalism is the attempt to trace logical connexions between moral appraisals and the actual pro- and con-attitudes of men, their desires and aversions, hopes and fears, joys and sorrows. One-track naturalistic theories always fail to do justice to the complexity both of the facts and of the logical connexion, since they suggest that there is only one thing towards which men have a pro-attitude, pleasure, or that all pro-attitudes are desires. And these theories are both psychologically and logically misleading.” Pg 181

“There is one peculiarity which right’ shares with ‘good’ and ‘ought’ and with no other words. Except in ironical or other secondary uses it is always a pro-word. We saw that while A-words must always carry a pro-force when used in the contexts of choosing and advising, they do not always carry the same force, and we have to gather whether they are pro- or con-words from the context. This is never the case with ‘right’. Some words that are akin to ‘right’, such as ‘just’, ‘fair’, and ‘honourable’, are almost always pro-words, but they admit of exceptions. They imply a code of rules but they could be used in cases where we want to advise a man to disobey the code. We might think, for example, that this was a case in which justice should give way to mercy and we should then say: “It would be the just thing to do; but in this case I don’t think you ought to do it”. But the word ‘right’ is seldom, if ever, used in this way.” Pg 189-90

“But we use ‘you ought’ sentences precisely when we are not in apposition to issue orders; and this fact and the fact that these sentences must be backed by reasons provide an important clue to their logic. Although ‘advice’ is far too weak a word for many ‘you ought’ sentences, their logic in primary cases is always that of advising, never that of commanding. For they are addressed to a rational agent as solutions to this problem of choice and, in consequence, they imply a pro-attitude on the part of the recipient. The author of a command, on the other hand, is not logically bound to be concerned with the pro- and con-attitudes of his subordinates, though, of course, he may be.

It is for this reason also that it is a mistake to define moral ‘oughts’ in terms of God’s commands or ‘God’s will’. For the mere fact that a command has been issued by a competent authority, even by Go, is not a logically good reason for obeying it. …We do in practice often appeal to the existence of a command in backing up an ought-sentence, in the same sort of way that we appeal to the existence of a rule; but this procedure contextually implies a general pro-attitude on the part of the recipient towards obeying the commands of that authority, as such” Pg 192

(On differences of opinion about whether a course of action ought to be taken)

“It might seem that this situation is still analogous to a dispute about an empirical matter. For if Jones says “It’s a dog” and Smith say “No, it isn’t”, they can both be right in the sense that each has used the correct form of words to express what he intended to say, but they cannot both be right in the sense of saying what is true. But, as we have seen, there is in empirical matters a test of truth which is independent of the beliefs of the speaker, namely the correspondence with the facts, so that in these cases there is a point to the distinction the two senses of ‘right’. But if the dispute is a moral one there is no test of this kind.” Pg 194-5

“The theory that men can only aim at their own happiness is plausible only if ‘happiness’ is covertly used as a general word covering ‘whatever men aim at’. Since this conflicts flagrantly with its normal use it is not surprising that some teleologists have slipped into covert egoism.

Gay is not the only or the best known philosopher to have made this mistake; Mill also seems, at time, to have supposed that ‘right’ means ‘conducive  to the greatest happiness of the greatest number’ and Moore expressly says that “the assertion ‘I am morally bound to perform this action’ is identical with the assertion ‘This action will produce the greatest happiness of the greatest possible amount of good in the Universe’.”, although neither Mill nor Moor slips into egoism”. Pg 222

(On the purpose of moral rules)

“(i) Duties of beneficence. There are two reasons why beneficence should be considered a duty. In the first place benevolence is one of our natural pro-attitudes. It is one that conflicts with other pro-attitudes and it is one that tends to be stronger in our calmer and more reflective moments. If to do good to others is one of a man’s dominant aims he has a good reason for making this type of conduct a duty; for if he does so his desire to do good to others will now be backed up by his desire to do his duty, which is an exceedingly powerful motive. In this way he is more likely to try to do good to others even at moments when he does not much want to do so, and so come to fulfil his dominant aim more completely than he would if he did not adopt this rule.” Pg 231

(On conscientiousness)

“Aristotle held that a man was not really good unless he enjoyed doing what is good, and I am inclined to agree. The sense of duty is a useful device for helping men to do what a really good man would do without a sense of duty; and since none of us belongs to the class of ‘really good men’ in this sense, it is a motive that should be fostered in all of us. But it plays little part in the lives of the best men and could play none at all in the lives of saints. They act on good moral principles, but not from the sense of duty; for they do what they do for its own sake and not for the sake of duty.” Pg 259

(On the paradox of representing all motives other than the sense of duty as ‘forces’ which oblige me to act as I do, since this entails that I do not act freely when I do what I want to do)

“There can be no such thing as intentional or even voluntary wrong-doing, and therefore no such thing as just blame or punishment. In the mouth of a Socrates or a Spinoza there would be nothing strange about this conclusion; for Socrates though no wrong-doing could be voluntary and was puzzled to know how any man could deserve blame, and Spinoza was prepared to push the theory to its inevitable conclusion and say that blame is never justified.. A wise man tries to understand why men behave as they do; only a fool blames.

But the theory of the self-propelling conscience is often found in conjunction with the view that conscientiousness is the only virtue and acting against one’s conscience the only vice. And it is this combination that is paradoxical, since on this theory a conscientious action is the only type of free action, all actions prompted by desire being unfree.” Pg 264

(On freedom and Responsibility)

“For in the great majority of cases of moral difficulty what is difficult  is not to decide to do what one knows one ought to do, but to decide what one ought to do. This sort of difficulty arises in three main types of case. (I) A humble and unimaginative person who accepts a customary code of morals without much question may find that two rules conflict; the voice of conscience is in this case ambiguous. (ii) A more self-confident, imaginative, and reflective person may wonder whether he ought, in the case before him, to do what the customary rule enjoins. He knows very well what the rule enjoins; but what prompts him to depart from it is no “part of his desiring nature”, but a suspician that the rule is one that, in this particular case, he ought not to follow. (iii) A man of fixed moral principles (whether or not they are those customarily adopted) may find himself in a radically new situation that is not catered for in his code. What is he to do? It is here, if anywhere, that the idea of an unpredictable ‘creative’ choice seems to make sense. He takes a leap in the dark, but just because it is a leap in the dark I doubt if we should be inclined to blame him if he leapt in what turned out to be the wrong direction.

Men who belong to a generation for whom the questioning of accepted principles has been no mere academic exercise and who have found themselves faced with momentous choices in situation not covered by their traditional rules will be less likely than their father perhaps were to suppose that the only sort of moral difficulty is that of resisting temptation.” Pg 288-9

“And if, as some suggest, desires are internal forces which operate on the will, do they exculpate in the way in which external forces do? The problem of free will is puzzling just because it seems impossible, without indulging in sheer dogmatism, to know just where to stop treating desires as ‘compelling forces’.” Pg 291

“If I regard something as immoral, then, however trivial it may be and however great may be the non-moral advantages of doing it, I cannot debate with myself whether I ought to do it; and we discover what our own moral principles are very often by putting this sort of question to ourselves.” Pg 308

“A principle is not usually called a moral one unless the person who adopts it is prepared to apply it universally. If a man says that he does something as a matter of principle, he cannot (logically) make exceptions unless another moral principle is involved. However narrow in scope it may be, a moral principle must be applied to all cases that are alike in all relevant respects.” Pg 309

“What sort of principles a man adopts will, in the end, depend on his vision of the Good Life, his conception of the sort of world that he desires, so far as it rests with him, to create. Indeed his moral principles just are this conception. The conception can be altered; perhaps he meets someone whose character, conduct, or arguments reveal to him new virtues that he had never even contemplated; or he may do something uncharacteristic and against his principles without choosing to do it and, in doing it, discover how good it is. Moral values, like other values, are sometime discovered accidentally. But the one thing he cannot do is to try to alter his conception of the Good Life; for it is ultimately by reference to this conception that all his choices are made. And the fact that he cannot choose to alter this conception neither shields him from blame nor disqualifies him from admiration.” Pg 313-4

The tragedy proprietary rights impose on the commons

A recent focus of Australia’s attention was on the actions of three protestors who boarded a Japanese whaling ship to remonstrate with the crew members catching whales in and around designated Australian sanctuaries.

The three activists were then detained on board, requiring intervention by the Australian Government to have them released.

Viewpoints on this issue varied significantly within Australia, even though it can be said with confidence that most people disagree with Japanese whaling in all forms and in all areas.

Conservative chants about the sanctity of the protection of property by law were widespread. The act of trespassing by these three men on the Japanese ship was abhorred as illegal, immoral and detracting, if not completely destroying, the noble intent of their actions.

Greenpeace recently reported an incident with similar connotations, where a Court in Denmark was asked to punish an activist for trespassing on boats found to be illegally fishing in an area barred from such activity to save an endangered endemic species of Cod.

Whilst I am relying solely on the Greenpeace report as to the conduct of the court proceedings, and making an assumption that the law of trespass on private property by persons not acting with a greater authority than an ordinary person, there could be no doubt that the protection of property would see the activist convicted, despite the cause and the positive impact the actions had in enforcing the fishing ban. As far as I am aware, there exists no ‘noble cause’ exception to either the criminal or civil trespass laws.

However, the Danish Court, quite surprisingly and despite a plea of guilty to the charge, acquitted the activist and Greenpeace Nordic on the basis that the trespass was justified.

From a purely legal perspective, this finding is absurd, but a debate about how a court could find the two not guilty without a legal basis, and given the plea of guilty, is not the intent of this article.

The immutability of legal protections granted by law in all its forms, even where the protections are contra to ideas of morality, justice or equality (which you may read as equality between all life or equality between humans) is the current concern, as is mantle on which such rules are placed.

The most extreme extrapolation of this concern, where pronounced laws are all-powerful and must be obeyed despite their effect, can be seen in the Nuremberg trials of Nazi criminals. The regular defence raised in these trials was that despite the allegations that their acts were ‘crimes against humanity’ and international law, they were acts in accordance with the laws of Germany. Therefore, they argued, they could not be prosecuted, given that the laws were assented to by a sovereign government.

Modern day examples that might be used are the forced evictions of people from public areas which featured prominently in the Arab Spring uprisings and Occupy movements. Whether you agree with these movements or not, the actions of such protestors of voicing their concerns and seeking change, in their view, for the betterment of society, were met with the enforcement of proprietary laws over the land on which they stood to voice these concerns, even where these actions in themselves did not cause damage.

A more regular example is the removal of protestors from otherwise public lands where logging licences have been granted to a private company. The removal, and the following charges laid, are based on a legal protection to the licensee over the land from adverse actions of people who, other than their intent to protest, would be allowed on the land.

The imbalance seems most striking where law securing property rights is utilised to protect the furtherance of activities that in themselves may be illegal, immoral (whether that morality be derived from religion, ethics or otherwise) or against the will of some part of society, whether it is a majority or minority will. Further, where the damage caused by such protected activities is not caused to a person or to an object over which another person has proprietary rights that can be enforced, the law, particularly criminal law, struggles to appreciate the validity of those ‘criminal’ actions such as trespass taken to halt the destructive, but protected, activities.

It cannot however be said that pedestal of proprietary rights over land has remained at its lofty heights throughout time. Much like free market capitalism, exceptions to the general rule have been introduced so that the tragedy of the commons does not forever plague us.

For instance, laws regulating pollutants contaminating and emanating from private land is regulated through Environmental Protection laws, as they do for proposed constructions on private land which may affect protected public land, such as in the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

A more regularly used piece of regulation which acts to restrict the use of private land is found in local planning regulations, which of late have been updated to involve considerations of climate change and rising sea level when local Councils are considering a building or planning permit.

The questions for the future must be: Can (or will) government imposed regulation adapt to the evolving environmental conscience in a timely manner? Further, equitable outcomes achieved through regulation, at least historically, require complex legislation. Just look at the taxation laws in most developed countries which have this aim.Therefore, will environmental prosperity through equitable regulation be so complex as to end up being unworkable?

Finally, will the idea of private property forever restrict appropriate environmental action which alters the allowed use of land where competing economic interests are effected?

Although small-scale or singular domestic housing application have been rejected outright under current regulations (see reports of the recent Narrawong Planning Control Decision for example), large-scale, environmentally destructive but economically advantageous (depending on who you are) developments continue to get approval. Looking outside Australia, the Tar Sands Pipeline between Canada and the USA is another example of environmental issues being in conflict private proprietary rights to the use of land and natural resources.

Could the idea of property, an idea that was once exclusively linked with power, and which wields lesser but still formidable power now, be the problem itself? Could the abolition of private property be the means of overcoming the accumulation of private wealth with legal protection to the detriment of adjacent land, rivers, oceans and atmosphere?

Were use of property influenced not by private interests in an economically driven society but by a truly communal, active, local community, the considerations of local environmental features effected by any action taken on that community’s land would receive paramount recognition and protection, and not a disconnected, procedural, uninterested view that such consideration generally receive now.

Such a change would need to be preceded by changes both in societal organisation and in psyche. The time for economic rationalisation of all actions and the strive for global economic growth would need to be replaced with concern for local issues and communal provision of the necessities for life such as shelter, food, water and clothing. Personal growth and satisfaction would need to flow away from consumptive self-gratification and into self-awareness, awareness of other people and awareness of other living things. Rights dependent on legal proclamation need to be replaced by universal rights of all beings, whether human, faunal, floral or natural.

The future of protecting environmental qualities requires more than just further incremental encroachments on historical ideals of rights to property and profit, attempting to leave the remainder of the economic system intact. It requires a relinquishing of these ideas, replaced with small-scale, communal, self-sufficient, conscious and conscientious existence.

Silent Saturday – My Clean Energy Future

Climate Scientists from Macquarie University, The University of Melbourne and Monash Sustainability Institute recently held a competition for anyone to create a film demonstrating the positive effects of a clean energy future, called “Green Screen Climate Fix Flicks“.

The purpose of the competition is part of the greater purpose of the association of these three organisations to raise awareness of and promote sustainable living. Given the similarity between this objective and that of my blog, I thought I’d have a go.

Using the camera in my phone and my trusty old laptop, here is what I came up with – “Silent Saturday“.

The film features my new (figuratively speaking) water tank and stand and new veggie patch, which are to be the included in a future article covering the new additions to my backyard, the tomato plants the topic of my last post, my bike, the often cited Portland tip shop and vegan cooking, all elements of my idea of sustainable world.

I really hope you enjoy it.

The Separation of Reality and State

The post below is a copy of my submission to the Planet Ark World Environment News Letter to the Editor Competition, entitled “The Separation of Reality and State”.

Below is my letter to the Editor in response to the article “BP will not be banned from offshore lease sale”, which can be found here.

Dear Editor,

What an outrageous statement!

“Do you administer the administrative death penalty based on one incident?” Michael Bromwich asks himself.

Perhaps he should ask Troy Davis!

But the State sanctioned destruction of human life is a matter for another context. The State sanctioned destruction of the biosphere is the alarm that imminently sounds.

Surely the imposition of capital venture over public land for the sole benefit of State and Multinational Corporation, to the dismay and despite the condemnation of the people, would have George Washington, and all those who have fought for the liberty of people from the wishes of an overarching power, turning in his and their graves respectively.

Pierre-Joseph Proudhon once proclaimed “property is theft!”

Indeed it is. And, indeed, it is destructive. And, indeed, such extensions of proprietary right to the company with the most capital to purchase it, regardless of the possible consequences to not only that which it has acquired but to all other land, all other fauna, and all other flora, is reckless endangerment of life.

But, with the increasing separation of the person from the State and the Corporation (both of which are figments of legal and historical imagination), increasing are the barriers to stop people, people who are connected to the land, to the sea, to the plants and to the animals, from being able to assert their own right.

The right to protect what they enjoy. The right to protect these elements of our world, not only for the benefit of human-kind, but for each of these elements to exist in their own right.

The vast majority of individuals have grave issues with the disaster in the western Gulf of Mexico, both for its environmental effect and its human death toll.

Not that an individual could cause such painful devastation, but should he or she do so, through his or her own negligence and the taking of short-cuts, the sanction imposed upon them through the mechanisms of State power would be crushing.

And yet, the corporate veil again exists to limit the extraction of retribution to a mere monetary one (both in sense of form and size) without any restriction of liberty that a natural person would have imposed upon him or her, let alone on their ability to partake in a similar activity again.

I admit that my first temptation on reading the article was to criticise the administrative decision to allow BP to participate in the lease sale.

However, the problem is far deeper than of just one administrative action.

It is a problem of societal systems.

Systems that allow decisions to be made, apparently on behalf of the governed but yet made whilst far removed from the governed, to allow companies to build private wealth and capital.

It is this system which willingly allows the destruction of the biosphere, to the detriment of all.

Cameron Tout.