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An Australian senator is summoned by the Equal Opportunities Commission

This is an excerpt from Hansard Australia recording a debate that took place in the Parliament of Australia on the 3rd September 2020:

Chamber Senateon 3/09/2020

Item ADJOURNMENT – Freedom of Speech

Senator CHANDLER (Tasmania) (17:45): Last week in the Senate I spoke about World Rugby’s efforts to defend the integrity and safety of women’s sport by ensuring women’s rugby is for female players. At the end of my speech, I referenced the recent case of a woman being fired from her job for speaking about the reality of biological sex. I posed the question:

How do Australians know that they are able to speak freely about women’s rights and the reality of biological sex without being censured or fired by their employer?

Well, it didn’t take long to get the answer to that question. The answer is that Australians are not free to acknowledge the realities of sex or to defend the integrity of women’s sport.

Today I received a letter from the Tasmanian equal opportunity commission, summoning me to attend a conciliation conference to answer for my statements on free speech and sex based rights. The complaint, made under the Tasmanian Anti-Discrimination Act, is in relation to an op-ed I had published in The Mercury earlier this year about, quite ironically, free speech. My op-ed started:

The recent publication of an open letter signed by 150 writers and academics in defence of free speech offers a glimmer of hope that we can put a stop to the anti-democratic cancel culture which has taken root in many corners of society.

Well, I’m not so sure about there being a glimmer of hope for free speech now. The complaint letter I received today says, in referencing my actions: ‘It is clear or can be inferred from her comments that she considers people who are born male and seek to live as a female should not have access to female toilets, facilities or sports. This is problematic because excluding someone who is designated male at birth and currently expresses their gender as female from single-sex facilities or sport may be direct discrimination on the basis of gender identity.’ It is open to the commissioner to dismiss the complaint as vexatious but without substance, but she has chosen instead to pursue it and to compel me to attend a compulsory mediation with the complainant.

Many democracies have a system whereby parliamentary committees or their equivalent demand the attendance of citizens so that questions can be put to them by the MPs. These sessions almost invariably display elected lawmakers at their most arrogant. I cheered when Dominic Cummings refused to appear before the Digital, Culture, Media and Sport Committee of the UK Parliament. But I have found one thing I hate more than elected politicians summoning members of the public for (theoretically) compulsory questioning: unelected bureaucrats summoning elected politicians for actually compulsory “conciliation”.

“Compulsory Conciliation” was the title of the post in the pro Scottish Independence blog “Wings Over Scotland” where I saw this illustration of how fast once-cherished notions of free speech can fall. It would have surprised me in 2014 to know that in 2020 I would be grateful to Stuart Campbell for the good work he is doing to protect civil liberties in Scotland. But that is the sort of thing that happens when a Bill allows as much scope for abuse as does the Hate Crime Bill (Scotland). People from all quarters of politics have seen the danger and come together to oppose it. And do not think for a moment that what happens in Scotland or Australia can be ignored elsewhere.

By the way, I was not particularly interested in Senator Claire Chandler’s exact views about the transgender issue, only in the fact that an “equalities” official can summon a Senator of the Parliament of Australia for questioning over her “problematic” opinions.

60 comments to An Australian senator is summoned by the Equal Opportunities Commission

  • bobby b

    Oz has fallen so far from the country it used to be. Covid has unhinged them, I think. I go read Catallaxy and I’m just horrified at what has happened.

  • Paul Marks

    I was going to say that this Act violates Freedom of Speech and this “Commission” should not exist.

    But then Australia is open about not protecting Freedom of Speech – just as the United Kingdom is.

    “Woke” Big Business in the United States would like the same system in America – a system where you can express your opinions, as long as you have the “correct” opinions.

    Such things as the Tasmanian “Anti Discrimination Act” should be opposed on principle as a violation of Freedom of Speech – but the “practical” right appears to have no principles (other than to keep a comfortable life) and so the left rules – for they do have principles, EVIL principles. And the establishment conservatives who are willing to sacrifice Freedom of Speech in order to preserve their comfortable lives, will find they LOSE their comforts. For politics is downstream from culture. Once the culture is controlled by the left – the extermination of “capitalism” is easy.

    The “international community” seem fairly united in holding that the People’s Republic of China “Social Credit” system is a jolly good thing – certainly most Corporations, with their university “educated” managers, are convinced of this. The same “clever” Corporate managers who will be astonished when their comforts are ripped from them.

    Still Sky News Australia (still owned by Mr Murdoch) is an exception.

  • Paul Marks

    bobby b – it was not Covid.

    Look up the Andrew Bolt case – years ago now.

  • Bruce

    So, “Parliamentary Privilege” has been abolished!!

    Interesting concept.

    PP has been notoriously abused from time to time, but not usually bu an “extra-legal” star-chamber.

  • Nicholas (Unlicensed Joker) Gray

    Stop appropriating Australian culture! Us Aussies don’t like it, so there! That ends the argument.

  • Itellyounothing

    At least we are finally getting all the secret tyrants to pop up.

    If they are to be successfully challenged, normies need to see the hideous face of their nemesis.

    Step 1 – National/international socialists enter the public arena after decades of stealthy institutional marches.
    Step 2 – Hope like hell that ordinary folk notice.
    Step 3 – “Dad” puts his foot down and stops all the crazy.

  • Nullius in Verba

    “It is open to the commissioner to dismiss the complaint as vexatious but without substance, but she has chosen instead to pursue it and to compel me to attend a compulsory mediation with the complainant.”

    Presumably it would also be open to the commissioner to judge them guilty, but they have instead decided to effectively take it to trial. A “conciliation conference” is basically a trial. Each side get to make their argument, express their point of view, and try to come to a resolution of their dispute, with the aid of an independent mediator. As such, I don’t think this “conciliation conference” is itself a violation of free speech. Presumably you can turn up and make your argument freely, and say what you like. Or presumably you can turn up and say nothing; make no argument.

    What happens if you can’t come to an agreement is potentially another matter. If the commissioner decides that you are guilty of “direct discrimination on the basis of gender identity” there may be a penalty or a recommendation to prosecute, although I’d like to think that the law only forbids actually doing it (treating people less favourably because of their gender identity), rather than merely talking about it, and they’d be judged not guilty.

    It is an abridgement of freedom of movement – in the same way that arrest and trial is. Innocent people suspected of a crime may still get arrested and tried, and they are required to turn up. And of course to some extent the process is the punishment. You’re forced to turn up and *debate* the question rather than just preaching it to the choir. But a compulsory concilitation conference is not in itself blocking free speech, and is intended as a way of avoiding a formal trial through trying a more informal process with lower stakes first. I’d recommend just treating it like a trial, turning up, and making your case.

  • Snorri Godhi

    But then Australia is open about not protecting Freedom of Speech – just as the United Kingdom is.

    And Canada.

  • Snorri Godhi

    PS: but at least, in Australia and Canada, there has not been much damage from BLM riots afaik. Not so in the US and (if i am not mistaken) UK.

  • As such, I don’t think this “conciliation conference” is itself a violation of free speech.

    Are you kidding? The state can hold a hearing in which you have to justify your stated opinion but… you don’t think the very process is a violation of free speech? Seriously? That’s the hill you want to die on?

  • Nullius in Verba

    “Are you kidding? The state can hold a hearing in which you have to justify your stated opinion but… you don’t think the very process is a violation of free speech?”

    Why should I be kidding?

    You don’t have to justify your stated opinion if you don’t want to – just turn up and say “I have no justification”. Or say “I do have a justification but you’ll just have to take my word for it because I’m not going to tell you what it is.” Or say “Whether the opinion is justified or not, the Sex Discrimination Act 1884 doesn’t prohibit expressing opinions about it, only doing or proposing to do actual discriminatory actions. Further, it specifically excludes actions that are “reasonable in the circumstances”. I’m expressing my opinion that it’s reasonable in the circumstances in this case, and thus what I’m proposing is fully within the law. Or I’m suggesting that if not, the law be modified through the democratic legislative process. Thus whether or not I’m right about it being reasonable, I’m not proposing to break the law, or carry out any illegal act.”

    There’s nothing stopping you exercising your right to free speech. You can say whatever you like at a conciliation conference. That’s the point of them. Both sides get to express their point of view.

    Like I said, what happens afterwards if you can’t come to an agreement may be a different matter, and if a mere op-ed article breaches the law I’d be disappointed, but we’re not there yet. It’s a hearing, an opportunity to give your side of the argument, no more. The commissioner may yet rule in his favour.

    “(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if, by reason of:

    (a) the aggrieved person’s gender identity; or

    (b) a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or

    (c) a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person;

    the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity.

    (2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person.”

    The bit in there about “proposes to impose” is perhaps sufficiently ambiguous (to my non-lawyer reading) that I don’t think it would necessarily be trivially obvious to the commissioner whether it breaks the law. They presumably want to clarify the issue. Being given the opportunity to have your say is what we normally mean by a ‘fair trial’. Does a fair trial constitute a violation of free speech?

    “That’s the hill you want to die on?”

    I’m not proposing to die on any hills. I’m just making an observation. It’s not a violation of free speech *yet*.

  • I’m not proposing to die on any hills. I’m just making an observation. It’s not a violation of free speech *yet*.

    The process is the punishment FFS. The mere fact an organ of the state can demand you justify opinions is a clear violation of free speech & it is ludicrous to think otherwise. Why do you think this process even exists if not to ‘discourage’ certain opinions?

  • Fraser Orr

    Snorri Godhi
    And Canada.

    And Scotland I think even moreso than the UK as a whole. I really don’t understand it. When I grew up in Scotland, Scots people were a practical group. They were very much a live and let live type of a people. They were too busy with their own lives and family to fuss too much about what other people were saying and doing (unless you were a papist or a proddy, or supported the wrong football team, but that is a special case.)

    What the hell happened? Scotland used to be a really lovely place with lovely people. When did it get so consumed with busybodies? Wee waman gossiping over the fence used to be ridiculed, now it is apparently mandatory behaviour.

    I mean what is it? I left you alone with the place for a few years and you screwed it up? 😉

  • Natalie Solent (Essex)

    Nullius in Verba writes,

    Does a fair trial constitute a violation of free speech?

    Prior to the Sexual Offences Act 1967 many people were brought to trial on charges of having engaged in homosexual activity. In most cases their trials were conducted properly in accordance with the laws of the time. The evidence was not fabricated, the juries were not tampered with, the judges adhered to the law when sentencing those found guilty. Yet, would you believe it, some fussy people still claim that something about the whole idea of putting suspected homosexuals on trial was wrong, even though they had every opportunity to defend themselves…

  • Nullius in Verba

    “The process is the punishment FFS.”

    I did say that!

    But the same is true of any fair trial. If you’re accused, you get investigated.

    “The mere fact an organ of the state can demand you justify opinions is a clear violation of free speech & it is ludicrous to think otherwise.”

    But they’re not demanding you justify your opinions. They’re demanding attendance at a conciliation conference.

    A measure that far from restricting your free speech, explicitly arranges an opportunity for you to express your point of view isn’t restricting free speech. It would be ‘ludicrous’ to think it was.

    “Why do you think this process even exists if not to ‘discourage’ certain opinions?”

    What, criminal trials? Or pre-trial conciliation? Conciliation exists to offer a cheaper pre-trial alternative to a formal trial, an opportunity to sort out the disagreement informally before facing the possibility of legal penalties. You could just as well consider it a demand that the complainant has to attend to defend their attack on free speech. It goes both ways.

    The elected government passes laws and the justice system has to apply them, impartially. It could be argued that this was a clear breach of the law. The senator could be simply found guilty. That’s how laws work. As a senator and legislator, she should know that. They’re not above the law they create and impose on everybody else. The justice system has to decide whether the law has been broken, and that is undoubtedly an expensive, inconvenient, annoying process for everyone involved, especially when applied to those who turn out to be innocent. But it’s necessary if laws are to be enforced and people are to have fair trials. It’s the same for an innocent who has been tried and acquitted for murder, rape, theft, or fraud. You could argue that it’s purpose is to discourage anyone from even giving the appearance of having committed a crime, but I don’t see what alternative you’re proposing. A legal system has to have trials to determine guilt or innocence, and thus by definition it will sometimes get applied to the innocent. Being tried for a crime is not the same as being found guilty of it, but may sometimes feel like it.

    The justice system doesn’t get to say this is a stupid or immoral law and they’re not going to apply it. That’s the job of Parliament to decide. (Or the electorate.)

  • Bruce

    Ayn Rand had some words to say about this in “Atlas Shrugged”:

    “Did you really think we want those laws observed?” said Dr. Ferris. “We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against… We’re after power and we mean it… There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that’s the system, Mr. Reardon, that’s the game, and once you understand it, you’ll be much easier to deal with.”

  • Nullius in Verba

    “Prior to the Sexual Offences Act 1967 many people were brought to trial on charges of having engaged in homosexual activity. In most cases their trials were conducted properly in accordance with the laws of the time.”

    Yes, agreed. And I’d not blame the police or the courts for doing so. I’d blame Parliament, and the people who elected them.

    But in this case it’s more like someone proposed a change in the law to legalise homosexual activity, was accused of breaking the law, and was invited to make the case for their innocence at trial. They may well get found innocent. The court may well decide that the law doesn’t actually forbid opinions. We don’t know yet.

    If the law does actually outlaw expressing an opinion that the law should be changed, or that it doesn’t apply in this case, then I agree the law is morally wrong and should be changed. But that’s not been determined yet. It might just be a misunderstanding between the parties – maybe one side misinterpreted what the other actually meant (like that could happen! 🙂 ) and on discussion they’ll be able to resolve it without the need for a trial. We don’t know yet.

    It’s a process to determine whether the law has been broken, not a determination that it was against the law, or a punishment for breaking it. And yes, that’s a pain for everyone involved, but so is every trial. Like Shakespeare said: “The first thing we do, let’s kill all the lawyers.”

  • But the same is true of any fair trial. If you’re accused, you get investigated.

    There is no such thing as a ‘fair trial’ for deciding if your stated opinions are going to be allowed or not.

    But they’re not demanding you justify your opinions. They’re demanding attendance at a conciliation conference.

    Not just wrong but self-evidently preposterous. The entire point of demanding attendance is to require you to argue (or recant) a stated opinion. WTF do you think is the purpose?

    A measure that far from restricting your free speech, explicitly arranges an opportunity for you to express your point of view isn’t restricting free speech.

    “Arranges an opportunity for you to express your point of view” in front of state employees, with a view to determining if said point of view is acceptable… are you taking the piss when you claim this does not restrict your free speech, because being dragged in front of a committee could not possibly have that effect, right?

    The elected government passes laws and the justice system has to apply them, impartially.

    WTF has that got to do with your preposterous claim this is not about restraining free speech? What the law has to say about it is utterly irrelevant.

  • NickM

    Ah, c’mon NiV! I gotta say I’m with Perry here. This despite the fact I often think you speak a lot of sense… But not this time. It’s a Star Chamber and no amount of your sophistry will convince me otherwise.

    Free speech is an absolute. Nobody should ever need to have to justify it in anyway shape or form. This should be the case regardless of however absurd, vile, ludicrous or obscene it is deemed to be by the powers that be.

    The fact that in this case the issue in question – that only women ought to play women’s Rugby – is so bloody obvious only hammers that fact home.

  • Snorri Godhi

    Fraser: what you write brings back memories of my time in Canada (Alberta).
    My doctor was a Scot. He was (or appeared to be) all what an MD is supposed to be. Dry, professional, but sympathetic. I miss him.

  • Snorri Godhi

    The fact that in this case the issue in question – that only women ought to play women’s Rugby – is so bloody obvious only hammers that fact home.

    And yet, i look forward to the day when men will be allowed to play in women’s competitions. That will be hilarious.

    (Except for rough competitions such as rugby, American football, boxing, MMA: i hope we can avoid that.)

  • Nullius in Verba

    “Not just wrong but self-evidently preposterous. The entire point of demanding attendance is to require you to argue (or recant) a stated opinion. WTF do you think is the purpose?”

    The reconciliation conference is formally neutral between the two sides. Both sides to the dispute are required to attend. So it could equally well be seen as requiring that whoever made the complaint is also to argue (or recant) their stated opinion that it was against the law. If it wasn’t illegal, that’s going to be pretty hard to do!

    The entire point of demanding attendance at a trial is to determine who is legally in the right.

    “Ah, c’mon NiV! I gotta say I’m with Perry here. This despite the fact I often think you speak a lot of sense… But not this time.”

    Well, that’s a relief! Thank you!

    “Free speech is an absolute. Nobody should ever need to have to justify it in anyway shape or form. This should be the case regardless of however absurd, vile, ludicrous or obscene it is deemed to be by the powers that be.”

    That’s *our* political opinion. Other people think differently. We don’t get to dictate the law, either.

    And I’ve had the absolute free speech argument with people on here where it’s been argued that certain people *don’t* have the absolute right of free speech, such as whether the police should be allowed to keep records of hate speech complaints being made. Should radical Islamists be allowed to preach in British schools? Should teachers be allowed to teach kids about alternative sexualities in school? My view on free speech is a lot more absolutist than that of most of the people here! 🙂

    But my point is that the justice system is not allowed to say “It is our political opinion that there should be no such law, so we’re not going to enforce it”. If the law outlaws opinion, the justice system has no choice but to enforce that. Just as they’re required to enforce laws that we like politically and they don’t. It is for Parliament or the electorate to say there should be no such law. If the justice system thinks that Parliament may have done so, then they have no choice but to take it to trial.

    Personally, I don’t think they have. When they talk about “imposes, or proposes to impose”, I don’t think they mean simply making a proposal to change or reinterpret the policy, I think they’re trying to cover the gap between a discriminatory policy being set and it actually affecting someone. So if I say “If a Jew ever gets a job here we’ll just harass them and make their life a misery until they leave” and make it known that’s what we propose to do, that’s creating a discriminatory policy that does harm to others. Even if no Jew ever actually applies (and why would they, if they know what’s going to happen?) it breaks the law. It’s a general point that speech can also constitute action, and it’s the action aspect to it that may be forbidden if it does harm. (Libel, fraud, etc.) Now, whether harassing Jews or white male conservatives or anyone else until they leave should be forbidden is another question, but that’s freedom of association, not freedom of speech.

    But Parliament worded it badly, and I think people are reading it as forbidding even the proposal of policy. And I don’t think a commissioner can decide for themselves what Parliament really meant, based on their own personal political opinions. There’s a formal process they have to go through.

    “The fact that in this case the issue in question – that only women ought to play women’s Rugby – is so bloody obvious only hammers that fact home.”

    Yeah. There was an interesting case of a female-to-male transgender kid who was on testosterone, wanted to play with the boys, but wasn’t allowed to because he was ‘born a girl’. Of course, the other girls got flattened! Bloody obvious, right?

    There’s a better argument for making the division along the lines of with/without testosterone. Those MtF who transition before puberty don’t get the testosterone boost, and there’s no reason to stop them competing with the girls. Those who transition after puberty get disallowed, but on other grounds than gender identity. I think the Olympic Committee did propose such a rule, but it got rejected when somebody pointed out that there were a proportion of women who had higher testosterone levels than a proportion of men. The distributions overlap. It would be like doing it on the basis of height – men are generally taller than women, but tall women are taller than short men. They eventually concluded there was no way to draw a line that worked for every corner case, and gave up.

    But sports is rife with cheating. Nobody has yet found a way to stop it. It’s a bit like the war on drugs.

  • Presumably it would also be open to the commissioner to judge them guilty, but they have instead decided to effectively take it to trial. A “conciliation conference” is basically a trial. Each side get to make their argument, express their point of view, and try to come to a resolution of their dispute, with the aid of an independent mediator. As such, I don’t think this “conciliation conference” is itself a violation of free speech. Presumably you can turn up and make your argument freely, and say what you like. Or presumably you can turn up and say nothing; make no argument.

    So basically a Kangaroo Court, which is appropriate for Australia.

  • Nullius in Verba

    “So basically a Kangaroo Court, which is appropriate for Australia.”

    In a sense, but one with no power to sentence.

    Amusing, though. 🙂

  • The reconciliation conference is formally neutral between the two sides.

    Wrong. The state interposing itself between two parties & requiring a hearing be held, in order to see if someone said something beyond the bounds of state permitted speech is not ‘neutral’, it is state action to emphasise that there is no ‘free speech’ only ‘permitted speech’.

    Both sides to the dispute are required to attend. So it could equally well be seen as requiring that whoever made the complaint is also to argue (or recant) their stated opinion that it was against the law. If it wasn’t illegal, that’s going to be pretty hard to do!

    Which sums up the absurdity of your position rather well. You claim this does not limit free speech, yet the entire purpose of this is to decide if the state can prosecute someone for straying beyond the limits of speech that the state imposes. Moreover, it allows someone who dislikes something someone else says to drag them in front of a state body. Care to reconsider you view that this does not limit free speech?

  • Nullius in Verba

    “Wrong. The state interposing itself between two parties & requiring a hearing be held to see if someone said something beyond the bounds of state permitted speech is not ‘neutral’, it is state action to emphasise that there is no ‘free speech’ only ‘permitted speech’.”

    Yes. There are such things as laws against libel, fraud, and threats. It is not axiomatic that there can be no laws restricting speech. The general rule is the Harm Principle – that society can only restrict individual freedom to prevent harm being done to others. Most speech is commonly taken to cause no harm, but there are a few instances where it does. Libel can destroy a person’s business, career, and relationships. Fraud can steal somebody’s money. Threat of harm can induce somebody to give up their freedom to avoid that harm. And, it is often argued, continual bullying and harassment can drive someone to suicide, or to losing out on a career or business opportunities out of fear. This argument has led people with sympathy for those driven to suicide to introduce laws to try to prevent it. It’s a controversial subject, because of course there is an argument over how much abuse someone can take before it counts as ‘harm’, and because it can be abused to silence people politically.

    The Australian legislature has tried to set a high bar, and generally speaking it enacts no laws against simply expressing an opinion. But it does set rules against certain actions, and as with the law on assault, it includes the threat of such actions along with the actions themselves as having the same effect, of directly causing harm.

    Now whether they should have done so is itself an important debate. It’s society’s and Parliament’s job to have that debate. Libertarians are not the only people with strong moral opinions about it. But the fact is that yes, the Australian legislature, along with pretty much every other legislature in human history all the way back to Moses, has set limits on speech based on their belief that it can do harm to other people. Just like legislatures since the dawn of history have violated free market principles by introducing protectionist tariffs and border controls. The judiciary cannot automatically assume that any act of speech must be legal, because it is universally the case that it is not.

    And if a complaint is brought before it, as a judicial body it has a duty to determine if the law has been broken, and that necessarily means holding investigations and hearings and enquiries. In this case, they seem to be starting with an attempt at conciliation, which usually I think reflects a court’s opinion that the participants are being silly and they should just sort it out between themselves without involving the legal system, although it may just be part of a standard procedure they apply in all cases. But if the conciliation fails, as I suspect it will with such entrenched and angrily self-righteous political positions on both sides, it will likely go to court. And the court will interpret the law as it has been set out by Parliament – it should not be substituting its own political opinions or prejudgements.

    And not having seen the words in question, or the commission’s letter, and not knowing the legal details (this might be being judged under Tasmanian law, for example, which is a bit different), I’m in no position to judge. It’s dangerous to decide a case after hearing only one side.

    So I’ve got no issue with the actions of the judiciary. They are forced by their role to apply the laws as written impartially. The procedure so far is not inherently unfair. It’s not like being sent on a mandatory ‘sensitivity’ course, where you’re required to sit and listen. It is explicitly an arrangement where *both* parties get the opportunity to explain their point of view to the other and see if they can resolve their argument without recourse to the courts. You can of course choose not to take the opportunity, but then you’ll wind up in court shortly thereafter.

    The question remains, though, whether I have an issue with Parliament for passing such a law, and that’s harder. The wording of the SDA is ambiguous (and I’m not even sure if this is the law involved). I strongly suspect they intended something else by it, and simply worded it badly. So that’s one criticism. It is possible that they really did mean to outlaw even any proposal to discriminate, in which case I disagree strongly with them. Or as I suspect, they may have intended only to outlaw words declaring a policy promising harmful actions – an initiation of force – in which case it becomes a legitimate matter for debate whether the harms are serious enough to merit the restriction. I’d want to know a lot more about the details of where and why they draw the line before I decided on that one. However, in the case discussed, it’s apparent that we can’t answer that question, because it has not gone to trial. It may well be that the law was never intended to outlaw such articles, and the case will be quickly dismissed. If Parliament has passed no law abridging free speech – except in the case of preventing harm being done to others, which every legislature does to some degree – then I can’t rightly criticise them for it. Or maybe they have in which case I will. I don’t know yet.

    “You claim this does not limit free speech, yet the entire purpose of this is to decide if the state can prosecute someone for straying beyond the limits of speech that the state imposes.”

    No, I’m saying that sending them to a conciliation conference does not in itself limit free speech. It encourages and enables free speech. It applies equally and impartially to both sides. And there’s no penalty for disagreeing.

    If it goes to trial, then the trial allows you to present your defence, which is also an application of free speech, but I agree the trial itself is to determine whether the speech was permitted speech. But unless you intend to take the absolutist position that genuinely harmful speech such as libel, fraud, and assault should be permitted (which you may, of course) then it is a legitimate question for a court to consider. And the court may yet decide that the speech did not infringe on the limits of the law.

    But as I said earlier, there have been several occasions where I’ve taken a more absolutist position on free speech, had people here argue that such speech by those other groups should not be permitted, and I’ve not seen you object. There was even an exchange where the question was explicitly asked “do the police have the same free speech and freedom of action that all the rest of us do?” and the reply I got was “Hell no. Not when they are working, I would certainly hope.” Some people seemed to think if you worked for the state, you didn’t get the right. Well, a senator works for the state.

    “Moreover, it allows someone who dislikes something someone else says to drag them in front of a state body.”

    That applies to any law. Consider the laws on sexual assault, or child abuse. As we’ve seen in recent years, these too allow somebody who doesn’t like you to have you dragged before a court. Does that mean there should be no laws against sexual assault or child abuse?

    The best defence against abuse of the courts is strong requirements for evidence. And I try to have strong requirements, too.

    However, it’s not worth arguing about any further, and I have other things to do today – so I’ll bow out here.

  • All this thread needs is Mark Wadsworth returning and telling us the whole issue of free speech rights would be solved with the imposition of a Land Value Tax.

  • My view on free speech is a lot more absolutist than that of most of the people here! 🙂 (Nullius in Verba, September 28, 2020 at 10:53 pm

    Perhaps it is so in Nullius’ imagination, as the PC are the tolerant ones in their imaginations. Sadly, we now observe that it is rather the reverse in reality.

    I’ve had the absolute free speech argument with people on here where it’s been argued that certain people *don’t* have the absolute right of free speech, such as whether the police should be allowed to keep records of hate speech complaints being made

    Nullius was not supporting any kind of free speech, let alone being more absolutist, in the old thread referred to above. Back then, Nullius defended speech to which some were compelled to listen while their parents were compelled to fund it; speech that was not even financially free, but force-of-law-funded elitism. (A link into the thread is here. Interested readers can draw their own conclusions.)

    However at least Nullius did not then go beyond merely arguing for compulsory funding and listening; was not then also defending inflicting process-is-punishment on the expression of an opposing view in the public domain.

    The supporters of this are characterised by Australian speech commissioner Gillian Triggs on-record remark: “Sadly, people can still say what they like around the breakfast table.”

  • Paul Marks

    Nullius is consistent – consistently wrong.

    As for this particular subject.

    No it is NOT for “society and Parliament” to have a “debate” about whether people are going to be allowed to express their sincere opinions in print. Someone may be wrong – but that is the matter of debate (whether they are right or wrong – not whether or not they can publish their opinions).

    That it is NOT up to Parliament (or “society”) to decide what opinions may be written down and published is what the principle of Freedom of Speech is about.

    So, again, Nullius is consistent – just as his support for lockdowns (without any evidence that a specific individual or place of business had a dangerous infectious disease – as the Swedish government was legally advised, they would have to provide evidence against every individual and place they wished to lock down, so they gave up the idea) shows no support for the freedom to run a business, or a church, or for freedom of movement. So his comments here show no real support for Freedom of Speech – against a Parliament, or a “society”.

    There once was an argument that Parliament was a great defender of individual liberties – but I would be astonished if anyone would seriously make such an argument now, in the case of Australia or any other country. In the case of United Kingdom even in the 1870s Parliament was putting some groups (unions – Act of 1875, made worse in 1906) above the Common Law, telling elected local councils they had to do about 40 things regardless of what the ratepayers wanted (another Act of 1875) and on and on. Indeed in 1912 more than a million people indicated that Parliament could not be trusted to even safeguard the nation, or the basic liberties of individuals (Ulster Covenant), so it NOT just a matter of “well only 24 Members of Parliament voted against another six months of Emergency Rule so boo-hiss Parliament” – to judge Parliament on a single vote would, perhaps, be unfair, but to judge Parliament on a general pattern of behaviour is not unfair. Although then the question arises “can judges be trusted any more than Parliament – or are they even less trustworthy?” I will not try and answer that here, other than to say if Parliament fails at least we have the right to elect a new Parliament (if most people support basic liberties – a big “if”). The establishment go nuts at the mere mention of the words “unelected judges” – but the fact remains that in the United Kingdom they are unelected, the people can not replace them (without demanding an Impeachment process – and that brings us back to Parliament again). “Tony Benn said that” – Mr Benn also believed that water is wet, that does not make water NOT wet.

    Jury nullification used to be an option – but if you want to see the establishment even more angry than at mention of the words “unelected judges”, then mention “jury nullification” or “the duty of a jury is to judge the law – NOT just the facts of the case”, the elite essentially fly into a rage if anyone mentions this, and it is a very dangerous rage (so do not mention this in a court – they will punish you if you do).

    Still back to Nullius…..

    Should Nullius have the right to oppose Freedom of Speech? Should intolerance be tolerated?

    I would say YES. Just as someone has the right to argue that everyone with “Jewish blood” (such as myself) should be removed from “society”. Ditto someone with red hair. It is quite wrong to persecute people with red hair – but persons have the right to SUGGEST the persecution of people for having red hair, as long as they do not do it.

    This does not mean that I agree with Nullius – it is a matter of defending his right to attack Freedom of Speech in favour of the supposed right of “Parliament” and “Society” to persecute people for peacefully expressing their opinions.

    By the way the Andrew Bolt case (of which Nullius is well aware) shows that, contrary to the claims of Nullius, the expression of certain opinions (for example that someone who has white skin, blue eyes and blond hair can not, honestly, present themselves as an aboriginal) are de facto banned in Australia – and Mr Bolt was (not was not) sentenced.

    It is not good for someone who is clearly an enemy of Freedom of Speech to present themselves as a “Free Speech Absolutist” – but then we are used to “Lockdown” Nullius.

  • Paul Marks

    “But what about FIGHTING WORDS Paul?”

    As I understand it “fighting words” is (or was) a defence for an individual – “he called my mother a whore – that is why I hit him in the face”, it is NOT a justification for the state to persecute someone.

    As for “shouting fire in a crowded theatre” (this argument was used in a case that had nothing to do with shouting fire or with a theatre – and a case that was well decided) – if there actually is a fire in a theatre then telling people there is a fire would seem to be sensible thing to do.

    We come back to our old friend the Reasonable Man – is it reasonable to assume that someone sincerely held the opinion they expressed, in this case did they actually believe there was a fire, or were they just lying, shouting to get people killed in the crush?

    That is something for the jury to decide.

    On fighting words – I am reminded of the alleged words of old Senator Benton.

    Senator Benton you remember President Jackson?

    “Of course I remember President Jackson – I shot him once, he was a fine man!”

    Supposedly they had fought a duel over rash words that one or other of them said – but they were friends again afterwards.

    Both, or course, Ulstermen by ancestry and culture.

    Both men would, I suspect, have been appalled at a prosecution of someone for shooting someone else dead in an affair of honour.

    And even more appalled at the possibility of the prosecution of Cassius Clay (the 19th century one) for cutting up some men with his Bowie knife (and, I seem to remember being told, his teeth).

    As Mr Clay pointed out these men (pro slavery men – Mr Clay was anti slavery and this was the cause of their dispute) had ambushed him and were trying to kill him – and they had firearms whereas he was alone and just had a knife (and, possibly, his teeth – which supposedly had a difference of opinion with the throat of one of the attackers).

    The effort at prosecution collapsed, and rightly so – it was a clear cut case of self defence. The surviving attackers had no case – indeed they were the guilty parties.

    I believe that Mr Clay never had to use the privately owned cannons he had protecting his property (protecting it from pro slavery men) – but I stand open to correction.

    Senator Benton was anti slavery (although, it is claimed, partly to annoy his neighbours in Missouri). President Jackson was pro slavery (before someone jumps in – I know it was a lot more complex than that in the case of Andrew Jackson), but had they met him, I am sure they would both have declared Cassius Clay a “fine man” – he was very much a man of their type.

    Both Senator “Bullion” (so called because he, correctly, held that only physical gold or silver could be “legal tender” in any State of the United States – Article One, Section Eight “coin money” and Section Ten – gold and silver) Benton in Missouri and Cassius Clay in Kentucky were acting, in some periods, against the majority opinion in their society on the matter of slavery.

    I wonder what Senator “Bullion” Benton would have to say about the present monetary and financial system of the United States – assuming he did not just explode and kill all the “traitors” involved.

    I think (assuming he controlled himself) Senator Benton would point out that this was NOT a new situation – that the Continental Congress (and many States) had tried paper money, and Credit Bubble finance, in the 18th century – and that the Constitution of the United States had been expressly written to prevent further “Not worth a Continental” episodes.

  • Paul Marks

    As should be, but is not, well known – the existence of the Tenth Amendment settles the matter of Federal fiat money (and much else) if the Federal Government is not explicitly given a power, it does not have that power.

    The “general welfare” being the PURPOSE of the specific powers granted to the Congress, not some sort of “catch all” power in its own right.

    But as modern lawyers rightly say – do not write a preamble to a substantive clause, just write the actual substantive clause.

    The 18th century habit of writing preambles is not a good habit – see the (pointless) arguments over the preamble to the 2nd Amendment. There was never any intention to deny the right to keep and bear arms to people NOT in the militia – the militia was just an example (example) of why such a right is vital.

  • “You claim this does not limit free speech, yet the entire purpose of this is to decide if the state can prosecute someone for straying beyond the limits of speech that the state imposes.”

    No, I’m saying that sending them to a conciliation conference does not in itself limit free speech. It encourages and enables free speech. It applies equally and impartially to both sides. And there’s no penalty for disagreeing.

    If we were in Australia, I would be demanding you be dragged in front of a mandatory state committee after every comment you make here rather us than argue it out in the comments. I mean why not? I just want to encourage and enable your free speech.

    Your views are Orwellian, given you use the term free speech to describe speech that you can be forced by law to defend in front of a state committee. Nothing you say can be believed or taken at face value, not a word of it.

  • Nullius in Verba

    Hmm. I thought this conversation would have died by now. OK. I’m still game!

    “Perhaps it is so in Nullius’ imagination, as the PC are the tolerant ones in their imaginations. Sadly, we now observe that it is rather the reverse in reality.”

    Every brand of politics consider themselves the tolerant ones in their own imaginations. Every brand of politics has their own version of political correctness. And every brand of politics doesn’t see their own behaviour as intolerance or political correctness, just a righteous insistence on the plain and obvious truth.

    Do you believe you’re any different, when it comes to tolerating diversity of opinion?

    “Nullius was not supporting any kind of free speech, let alone being more absolutist, in the old thread referred to above. Back then, Nullius defended speech to which some were compelled to listen while their parents were compelled to fund it; speech that was not even financially free, but force-of-law-funded elitism. (A link into the thread is here. Interested readers can draw their own conclusions.) However at least Nullius did not then go beyond merely arguing for compulsory funding and listening;…”

    This sort of misrepresentation is vaguely annoying! 🙂 I wasn’t defending the compulsion, whether to listen to it or to pay for it. I was asking why you thought that negated the right to free speech.

    And several of the examples being discussed and that you wanted to ban didn’t involve compelled listening, either. Like what private records and notes the police are allowed to keep.

    Nevertheless, it’s plain you *do* set limits on the absoluteness of free speech, and consider it justified, which was all I really wanted to say.

    “If we were in Australia, I would be demanding you be dragged in front of a mandatory state committee after every comment you make here rather us than argue it out in the comments. I mean why not? I just want to encourage and enable your free speech.”

    For the purposes of free speech, what’s the difference? The state committee is simply demanding that we make ourselves available to ‘argue it out in the comments’. It is not making any demands with regard to the content of our argument. So you can turn up and say what you would have said in the comments. Or you can turn up and say nothing. They are compelling your attendance, they are *not* compelling your speech.

    And the power to compel attendance is not specific to the free speech question, it applies to *any* trial of law. If you are suspected of murder, because you was at a certain place at a certain time, or even because of something you had said about your motivations/intentions/actions, you can be compelled to present yourself to the court (or a police station) to defend yourself. Even if you’re innocent. Even then, you have a right to silence. That doesn’t mean that being at that place/time has been made illegal, or punishable, or that the law is saying that just being there makes you a murderer. It still makes it possible for someone to cause you major trouble by falsely accusing you of murder, or framing you. It’s part of the price of the administration of law, that the innocent are sometimes required to defend themselves.

    “Your views are Orwellian, given you use the term free speech to describe speech that you can be forced by law to defend in front of a state committee.”

    And as I asked above, do you therefore consider a fair trial to be a violation of free speech?

    That, too, forces you to defend yourself in front of a ‘state committee’. Even those who will rightly be found innocent of all charges are still compelled to attend.

    “Nothing you say can be believed or taken at face value, not a word of it.”

    I’m still getting the impression that you’re not understanding what I’m saying.

    What I was trying to say was that it has not been determined yet whether what the senator said is against any law, that being asked to, in effect, “argue it out in the comments” first before forcing a court to take it to trial is not in itself a breach of free speech, that there is at least the possibility that speech can constitute action and be barred under the Harm Principle, and that the justiciary must, by the nature of fair trials in general, summon even innocent people to attend court when an accusation of criminality has been made.

    I’ve not read the article the senator wrote, I don’t know what laws are being applied, so I can’t say if there was an actual breach, or if the law genuinely abridges free speech. I don’t know. I certainly don’t exclude the possibility. And I’d certainly condemn it if that’s what turns out to be the case. But that hasn’t been determined yet. All we’ve got is that the court have asked both sides to try to sort it out between them first before going before the court to decide it.

    There seems to be an underlying political narrative here, that’s become unquestionable dogma on this side of the fence. The state is passing laws to ban speech, and even where it isn’t banning speech, it’s creating mechanisms to allow people to be legally harassed and dragged through the courts for saying things people don’t like but which are not actually officially banned. It’s true that any sort of law enforcement can be abused that way, and it’s possible that the people bringing this complaint before the commission might be thinking that way. But none of us can read their minds, and I’ve not seen anything reported about what they said. They might genuinely (and perhaps wrongly) believe it’s illegal. And I don’t see how else any justice system is supposed to act than to hold a trial with input from all sides if complaints of illegality are brought before it.

    It’s true that the enforcement of the law can be abused in this way. But no direct evidence is presented above that the law makers, the complainants, or the courts actually did in this case. Their motivations are assumed. Only the political narrative is telling us what they intended.

    Someone once told me that the way political bias tilted decision making was not anything as simple and obvious as politically-motivated denial of the plain but uncomfortable truth, but was that one side asked the question “Can I believe this?” and the other side asked the question “Must I believe this?” Without strong evidence either way, believers in the narrative see the narrative playing out when there is no hard evidence to contradict it. Non-believers in the narrative refuse to see it unless they have absolutely no choice. Both sides firmly believed they were being rational, their conclusion was obvious, and the other side were letting their political biases dictate their conclusion.

    I try not to let my own political biases bias my conclusions. I don’t always succeed, but at least I recognise the possibility, and make the attempt. And I recognise that when people disagree with me, it’s not always because they are liars consciously arguing in bad faith. People can genuinely see things differently, depending on their meta-context, even on subjects that either or both consider “obvious” and beyond argument.

    In my view, listening to other people’s different points of view on things like this is actually one of the greatest benefits of free speech.

  • And as I asked above, do you therefore consider a fair trial to be a violation of free speech?

    If you can be put on trial for merely stating an opinion, there is no such thing as free speech & thus the form of the trial of irrelevant to the contention ‘being forced to defend your argument in front of a state committee does not abridge free speech’ (let alone the ludicrous Orwellian claim it enables free speech).

    Here are the logical inferences of your position: “If you object to putting someone on trial for speech, do you object to putting someone on trial for murder?”

    Or perhaps: “do you consider a fair trial for being a Jew a violation of freedom of religion”? After all, it is a fair trial, right? You can have a lawyer and all that good stuff, so in reality it is actually enabling and encouraging freedom of religion! And to make it even more wonderful, maybe you can get the state to not put you on trial by attending a mandatory conference in which you will be told to justify your membership of this disfavoured religious group in front of a scrupulously neutral state appointed committee.

    Seems reasonable! 😆

    I’m still getting the impression that you’re not understanding what I’m saying. What I was trying to say was that it has not been determined yet whether what the senator said is against any law

    I understood just fine. And it… doesn’t…matter… what the determination of the committee is. The mere fact you can be summoned (with threat of force) to justify your opinions by a state committee, THAT is a violation of your rights. The law that makes this possible is a violation of your rights.

    You really need to acquaint yourself with William of Occam & try to lay out your views succinctly, perhaps the manifest absurdities would jump out at you earlier in the process.

  • In my view, listening to other people’s different points of view on things like this is actually one of the greatest benefits of free speech.

    Even better when you have to listen to other people’s different points of view at gunpoint (i.e. you are forced to attend a conference to hear those views).

    I know you think you are describing ‘free speech’ but you are not. State intermediated speech is the antithesis of free speech.

  • Nullius in Verba

    “If you can be put on trial for merely stating an opinion, there is no such thing as free speech”

    OK. Let’s take our standard libel, fraud, and threat examples. I express my opinion that you’re a criminal and as a result you’re fired from your job and lose your business. Harm has been done to you through my expressing my opinion. Can I say “But that’s free speech”? I express my opinion that the goods are mine to sell, you buy them from me, and then are upset to discover that I didn’t own them and so they’re not yours. Harm has been done to you through my expressing my opinion. Can I say “Oh, but that’s free speech”? I express my opinion that the mob under my command should burn down your house, and they do. Harm has been done to you as a result of me expressing my opinion. Can I say “But that’s my free speech”?

    Speech can be criminal when it is not *merely* an opinion, but when it leads to consequences doing severe harm to other people. Libel, fraud, and assault have consequences beyond merely conveying your opinion, and laws restraining speech are generally about restraining the *harmful consequences*, not the mere opinion.

    Did this speech by the senator have any such consequences? I don’t know. Apparently, neither does the commissioner.

    We’ve already had this conversation with regard to whether the police can keep records of non-criminal ‘hate incident’ complaints. The comments that kicked off the previous argument were: “So the judge is actually endorsing a secret police action, where they quietly record what people say or write, and take no further action.” to which I replied “Yes. So do the police have a right to free speech, too?” and later “The question is, do the police have the same free speech and freedom of action that all the rest of us do? Or are there things they are ‘not allowed to say’, even in the privacy of their own police station?” Your answer was a very explicit and clear “Hell no.”

    My position is that anybody can say whatever they like, including the police, teachers, and employees of the state, so long as no harm is thereby done to others. Keeping a record of what people say does no harm. Acting on it possibly does. Anyone can express their opinion that what happened was a ‘hate incident’, but threatening police action in case it carries on has consequences for that person’s freedom, and does harm. Even though the ‘threat’ was also ‘mere opinion’ and an act of speech, we are in agreement that it shouldn’t be allowed, and that it’s not a problem that the copper in question got summoned to the court to explain it to the judge.

    But it seems that I think so on the basis of applying the Harm Principle, and you think so for some other reason, that we never actually managed to nail down but seemed to be something to do with being employed or funded by the state. (Although since Australian senators are also employed and funded by the state, I don’t know how you’re applying that to this case…)

    I don’t know. Maybe you’ve changed your mind? Does a copper have a free speech right to state his opinion in private police records regarding what a person says, whether it constitutes a non-crime ‘hate incident’, and whether continuation of the feud is likely to lead to further police action? Is it not outrageous that the copper got dragged in front of the courts ‘at gunpoint’ for merely expressing his opinion?

    Does everyone, including policemen, have a right to free speech?

    “Or perhaps: “do you consider a fair trial for being a Jew a violation of freedom of religion”? After all, it is a fair trial, right?”

    As I’ve said, for me the distinction is about the Harm Principle. So consider the case of a fair trial for being an Islamic Fundamentalist promoting terrorism. Someone like Abu Hamza, say, has been recorded preaching the religious necessity of smiting the unbeliever in holy war, in circumstances that everyone expects will lead to more acts of terror. The justification for the law against preaching the orthodox doctrine of Islam is to prevent harm being done to others, but as such it could also be said to violate freedom of religion and freedom of speech. The preacher is only expressing his opinion that violent Jihad should be waged. And if the congregation see it only as his opinion, and are free to make up their minds on their own whether to ignore him, that might be seen as the proper conclusion. On the other hand, it’s also known that Islam requires believers to follow the directions of religious scholars in matters of doctrine, and known that there will be true believers in the audience. So his words translate automatically into actions. It’s a non-trivial question on which a court has to decide.

    Stirring up violent hatred against Jews and infidels has potentially harmful consequences. At the same time, it is potentially a question of freedom of speech and freedom of religion. Where do you draw the line? If Islamic Fundamentalist preachers are not employed or funded by the state, do they have carte blanche to say what they like?

    The same would be the case for prosecuting Jews or any other belief or faction. If we were, for example, to declare circumcision to be a case of assault, GBH, and child abuse, (not something I’d probably support, but I would at least consider it a legitimate question) and questioned somebody on their beliefs about it, that might be taken as a trial “for being a Jew”. Do you believe that old guys with beards and no medical qualifications should be allowed to slice the dick-tips off newborn infants because your imaginary sky-fairy told you to? Are you a safe guardian for this child? That’s clearly a trial to determine if you are Jewish!

    If there is a legitimate Harm Principle question over whether speech constitutes a cause of direct harm, then I would say it is legitimate to try the question in a court of law. I don’t accept the moral legitimacy of trying matters of *mere* opinion, with no reference to actual harm being done.

    “Even better when you have to listen to other people’s different points of view at gunpoint (i.e. you are forced to attend a conference to hear those views).”

    ‘Freedom of speech’ is not the same as ‘freedom not to hear’. This is the same as the argument in American universities about creating ‘safe spaces’ to shield people from hearing views that might ‘trigger’ a listener. It’s the same as the argument about ‘hate speech’, where people don’t want to be distressed or offended by people saying things to them they can’t avoid hearing. It’s the argument of the people who don’t want to be forced to hear hateful, transphobic opinions being broadcast into the public debate, or by people coming up to them in the street or in the workplace, or people directing the comments to them on social media. Rights to protest and political activism are empty if you can’t tell it to the people who don’t want to hear you. Except where it causes actual harm, beyond mere hurt feelings, it’s not a viewpoint I have much sympathy with.

    You’re free to ignore or reject views you don’t like. You’re not generally free to silence them.

  • ‘Freedom of speech’ is not the same as ‘freedom not to hear’.

    Indeed, the latter is an issue of free association, a notion you clearly do not support, what with you thinking state-mediated speech is a good idea.

    Rights to protest and political activism are empty if you can’t tell it to the people who don’t want to hear you

    I see, so far from supporting safe spaces, you think the state force people with threats of jail into a conference, to force them by law to hear the contrary opinions of said protesters. Got it. And your notion of ‘harm’ makes it perfectly acceptable be dragged in front of a state committee for stating opinions about woman’s rights & biological gender. This is not about blowing people up as well you know.

  • Nullius in Verba

    “Indeed, the latter is an issue of free association, a notion you clearly do not support, what with you thinking state-mediated speech is a good idea.”

    I agree that it is free association and not free speech. I *do* generally support freedom of association, except (as always) to prevent harm being done to others. Which is where this issue of whether a court of law can compel people to attend trial comes in. If the laws are directed at preventing harm, then justicial actions to enforce the law have some justification. Is a fair trial a violation of freedom of association?

    “I see, so far from supporting safe spaces, you think the state force people with threats of jail into a conference, to force them by law to hear the contrary opinions of said protesters. Got it.”

    Sheesh! It’s *not* about “forc[ing] them by law to hear the contrary opinions of said protesters”! It’s about trying to settle a dispute over whether said opinions cause harm and are illegal short of a court trial! It’s a generic property of *all* trials, that one is compelled to attend and listen to the opposition case!

    The proper question in a conciliation case is not “Who is right?” but “Is it legal?”

    The mention of ‘safe spaces’ is only to make the point that we have no right *not* to hear opinions we don’t like!

    “And your notion of ‘harm’ makes it perfectly acceptable be dragged in front of a state committee for stating opinions about woman’s rights & biological gender. This is not about blowing people up as well you know.”

    No. It’s about beating people up, sexually assaulting them, threatening them, firing them, denying them promotions, taking away their kids, refusing to serve them in shops, and generally making their lives a misery. It’s about banning them from using the facilities everyone else can use. It’s about them not being able to rent houses, take out loans, sign contracts in their legal name, get decent jobs, or take a bus or visit a bar without getting hassled, threatened, and pushed around.

    Just as laws on racial discrimination were not about the freedom to state dumb opinions about the biological reality of white superiority over blacks and the inevitable triumph of the Aryan Master Race. It was about segregation, Black Codes, Jim Crow laws, lynch mobs, and harm done to an entire class of people on no rational basis!

    Just as sexual discrimination law isn’t about the freedom to state opinions about the biological superiority of men over women, but about denying them the right to vote, to own property, to sign contracts, to work, to be paid fairly, to stand for and be represented in Parliament, to be treated as independent adults without having a man to constantly supervise and control their lives!

    All the crap you complain about the SJWs doing to you, this was all done by society to the women, blacks, and homosexuals who were denied their basic rights and freedoms by society for centuries! Not to mention people of the wrong religion, class, or nationality.

    People get harmed by these attitudes. The Islamic treatment of non-Muslims is only a more severe instance of the universal treatment societies mete out to those who don’t fit into their required norms. It’s the same with the SJWs and their treatment of the politically incorrect. They’re free to state their opinions, but when expressing those opinions have harmful consequences, like losing your job, or your business, or facing threats of violence and injury or death, opinion can constitute harm. People have committed suicide rather than face that level of social ostracism!

    Rights for women was not about men blowing women up, but it was about men doing women harm. Likewise blacks. Likewise gays.

    It’s the same principle. People are entitled to their beliefs about “biological reality”, no matter how outdated and wrong. But those attitudes become a problem when they cause harm to be done to others, and they are common enough to be inescapable.

    The question is, can expressing certain opinions lead to harms such as these? Where does the law draw the line? I’m not convinced yet that the law does forbid what the senator did. But I don’t know, and I don’t think it is for a court to pre-judge the question without examining the evidence.

  • I thought this conversation would have died by now. (Nullius in Verba, October 2, 2020 at 2:53 pm)

    Before you had had the very very very last word, Nullius? That would indeed be a surprise! 🙂

    I’m still getting the impression that you’re not understanding what I’m saying.

    Back at you, Nullius. 🙂 Try harder to understand, less hard to be ‘understood’. Failing that, you could try taking some ownership of this ‘incomprehension’ with which you think you are so often met. 🙂

    This sort of misrepresentation is vaguely annoying!

    I gave readers a link to the old thread, which is more than you did. They can follow that link, read above and below it, and judge for themselves.

  • I *do* generally support freedom of association, except (as always) to prevent harm being done to others

    Which mean no, you don’t support freedom of association, because the expansive way you define ‘harm’ means any exclusionary form of association ‘harms’ someone.

    It’s about trying to settle a dispute over whether said opinions cause harm and are illegal short of a court trial!

    Nope. Me (or an Australian senator) stating their views is only ‘a dispute’ in the legal sense because the state in Australia allows a stated opinion about women’s rights to be disputable & adjudicate by the state. Of course, the very fact this is all predicated on laws dictating which opinions are permitted is the root of the problem (no 1st Amendment in Australia that would make this entire repressive monstrosity legally impossible, sadly).

    No. It’s about beating people up, sexually assaulting them, threatening them, firing them, denying them promotions, taking away their kids, refusing to serve them in shops, and generally making their lives a misery. It’s about banning them from using the facilities everyone else can use. It’s about them not being able to rent houses, take out loans, sign contracts in their legal name, get decent jobs, or take a bus or visit a bar without getting hassled, threatened, and pushed around.

    And by that logic you can make ANYTHING someone says illegal on the basis of your infinitely adjustable ‘harm principle’. You can ban critical views of Islam (might ‘harm’ muslims by encouraging people to say mean things to them in the streets & lead to making their life miserable), you can ban criticism of ANYTHING because it might lead to someone else doing something bad or unkind or inconvenient.

    Stop saying you support free speech, you not only don’t, you make it clear at excessive length over and over again that you support state permitted speech & state intermediated speech. Your ‘harm’ principle means the state can stop anyone doing anything.

  • Nullius in Verba

    “Which mean no, you don’t support freedom of association, because the expansive way you define ‘harm’ means any exclusionary form of association ‘harms’ someone.”

    Yes, I do, and no, it doesn’t.

    “Nope. Me (or an Australian senator) stating their views is only ‘a dispute’ in the legal sense because the state in Australia allows a stated opinion about women’s rights to be disputable & adjudicate by the state.”

    The state in Australia allows the question of whether a statement does harm to be disputable. Like it does for libel, or fraud, or threat.

    “Of course, the very fact this is all predicated on laws dictating which opinions are permitted is the root of the problem”

    And again, the laws don’t dictate which opinions are permitted, they are about whether it does harm. Like laws against libel, fraud, and threats are not about legislating the opinions involved. You can express the opinion that your snake oil cures cancer, but not if it induces people to give you their money.

    “(no 1st Amendment in Australia that would make this entire repressive monstrosity legally impossible, sadly)”

    There are laws against libel, fraud, and threat in the USA, too! The 1st amendment poses absolutely *no* obstruction to restricting speech that does harm. The 1st amendment also gives lesser protection for obscenity and (historically) blasphemy.

    “And by that logic you can make ANYTHING someone says illegal on the basis of your infinitely adjustable ‘harm principle’.”

    It’s not infinitely adjustable.

    “You can ban critical views of Islam (might ‘harm’ muslims by encouraging people to say mean things to them in the streets & lead to making their life miserable), you can ban criticism of ANYTHING because it might lead to someone else doing something bad or unkind or inconvenient.”

    No you can’t, because I’ve already explicitly excluded such things as ‘offence’ and ‘hurt feelings’ from constituting harm. If your criticism of Islam leads to your followers beating Muslims in the streets, that’s harm. If it merely annoys and upsets them, no it doesn’t.

    “Stop saying you support free speech, you not only don’t, you make it clear at excessive length over and over again that you support state permitted speech & state intermediated speech.”

    What I support has nothing at all to do with the state! If the state approves speech that does harm, or if the state bans speech that does no harm, I oppose it.

    And I’ve done so over and over again, and yet you still somehow manage to get my position wrong! You’re not listening.

    “Your ‘harm’ principle means the state can stop anyone doing anything.”

    And why are you calling it *my* Harm Principle, when you must surely know it was the invention of Mr John Stuart Mill? 🙂

    Have you heard of him?

    “I gave readers a link to the old thread, which is more than you did. They can follow that link, read above and below it, and judge for themselves.”

    I often give links, and nobody reads them. How many times have I linked to ‘On Liberty’? And yet Perry still thinks the Harm Principle is *my* idea!

    I’m well aware that you can use Google or other search facilities to find it if you want to. And I expect smart people to do so. I was quite happy for people to judge.

    “Back at you, Nullius. 🙂 Try harder to understand, less hard to be ‘understood’. Failing that, you could try taking some ownership of this ‘incomprehension’ with which you think you are so often met.”

    In that previous conversation, I tried asking lots of questions to gain some understanding of the exact criteria you were operating by. And all I got back was that it was employment by the state, and this was “not hard”. What does that mean? An Australian senator is employed by the state, so she has no free speech rights?! Clearly that’s not what you meant!

    What I *understand* is that you’re closet authoritarians who want freedom for yourselves but not for any group of which you disapprove. You don’t like the police, so they don’t get free speech. You don’t like teachers teaching views you disagree with, so they don’t get free speech. You make up some excuse about them being ’employed by the state’ to try to justify it, but you can’t actually articulate exactly what it is about employment by the state that grants you dispensation to ban ‘mere opinion’. And when an employee of the Australian state apparently gets into trouble for expressing views you approve of, suddenly the rule no longer applies! You just find it ‘obvious’ and not worth discussing and that’s the end of the argument. It’s all my fault for not being able to explain!

    Twitter, Facebook, and the payment platforms bar right-wing customers using their platform to promote and fund right-wing views Twitter/Facebook disagrees with and doesn’t want to be associated with, and that’s terrible. Companies exercise free speech to express progressive political messages, and that’s an insidious threat to civilisation. Coinbase effectively fires all their staff wanting to use the company to project their progressive political views, and that’s great! Society stamps down hard on you – with real harmful consequences, like losing your job, your income, or getting hassled by threatening mobs while you’re trying to eat dinner in streetside restaurants – for expressing dissent from the current social norms, and that’s Orwellian totalitarianism. I mention some of the other groups history has stamped on for dissenting from social norms in the same sort of way, and oh no, the scare-quotes ‘harm’ done can supposedly be used to shut down the free speech of anyone speaking in support of enforcing those norms! There’s a pattern.

    What I’m seeing is that you find it obvious that views you disagree with should be restricted, and views you approve of should be given free rein. And you can’t comprehend why anyone would think that a problem, unless they were a supporter of those views you disagree with.

    Do the police have the same free speech and freedom of action that all the rest of us do? – “Hell no.” Not when they’re expressing opinions *we* don’t like. That about sums it up.

  • The state in Australia allows the question of whether a statement does harm to be disputable. Like it does for libel, or fraud, or threat.

    And the reason your contentions are nonsensical is the opinions in question were regarding women’s rights and gender. You fall into the same fallacy people do when they claim “shouting fire in a crowded theatre” is about free speech. It isn’t. Neither is libel, fraud or (actual) threat.

    If your criticism of Islam leads to your followers beating Muslims in the streets, that’s harm. If it merely annoys and upsets them, no it doesn’t.

    And this where you contradict yourself over and over and over again by claiming your ‘harm’ principle is harmless & compatible with free speech. The reason this ‘harm’ justification is infinitely expandable is other people’s actions can be used to throw someone in jail for criticising Mohammed, because your remarks might have motivated someone else to kick a Muslim.

    And why are you calling it *my* Harm Principle, when you must surely know it was the invention of Mr John Stuart Mill? 🙂 Have you heard of him?

    Know him well, utter cunt. Never understood how anyone could think he was actually pro-liberty if you look at all his views rather than just cherry picking the nice ones.

  • Fancy imagining free speech requires that “Congress shall make no law … abridging the freedom of speech …”. Nullius is here to explain to us slow-coaches that the true ‘free speech absolutist’ (Nullius’ self-chosen title 🙂 ) knows that laws may address any statistical risk of harm that ill-considered speech might indirectly cause – none of this dim-witted ‘literalism’ about ‘shall make no law’.

    🙂

  • bobby b

    In most of America, we can now carry guns. Used to be, you needed a permit to do so, and in many jurisdictions, the permits were of the “may issue” variety.

    Which means, the local sheriff could decide if he liked you or not, and if he did, he “may issue” a permit to you.

    It sounds as if NiV views speech in that same manner as did the crony-friendly sheriffs of old. Free speech is available on a “may issue” basis. It’s free, but we need to decide if it’s okay first. The possible harm from hearing words, you see . . .

    The chilling effect on speech of knowing that you might be hauled before the tribunal, prosecuted by your accuser (no, they’re not simply “another party invited along” – they are functioning as the prosecutor) and punished by the “neutral” state is huge. Even if there’s some bright line established, who is going to risk approaching that line, even if you know you’ll be on the correct side of it?

    That’s not free speech. That’s “may issue” speech.

    I got perma-banned on Twitter some time ago for saying that, if someone were running down the street slashing at people with a large knife, I would simply aim for center mass. I was threatening harm, I was told. Kicked off forever. But I have seen many many tweets much worse, made by progressives, which remain.

    In NiV’s tribunals, I would imagine that there will be varying bright-line tests established depending on viewpoint just as on Twitter. “He called him a racist!” – but did he call a white man a racist, or did he call a BLM rioter racist? I’m betting the results are different. To claim that such tribunals do not infringe speech is weak.

  • Nullius in Verba

    “It sounds as if NiV views speech in that same manner as did the crony-friendly sheriffs of old. Free speech is available on a “may issue” basis.”

    It might sound like that if you listen to other people’s paraphrase of ‘what I really meant’! 🙂

    You know American law – can you describe to me (in the same sort of way as your sheriff analogy) how the libel and slander laws work there? Would you also describe them as a “may issue” permit to speak, if the person you’re talking about likes what you’re saying?

    Has it ever happened in America under the 1st Amendment that people have been discouraged from saying what they want to about powerful people by the threat of getting dragged in front of a court to defend their words by a defamation suit? Even if they’re innocent, and what they say is either provable or ‘fair comment’? Didn’t libel law (prior to SLAPP) have exactly the same effect as we’re discussing here? Are there any “bright line tests” in libel/slander cases “depending on viewpoint”?

    Because the comparison I’m making is to laws on libel, fraud, and assault, which so far as I know are *not* considered contrary to the 1st Amendment, or abridgements of free speech. Can you explain why they’re not? Because that’s what I mean, I think we’ve got to the point where anything I say is going to be contradicted, and maybe you can do a better job of it than I can.

    “I got perma-banned on Twitter some time ago for saying that, if someone were running down the street slashing at people with a large knife, I would simply aim for center mass. I was threatening harm, I was told. Kicked off forever. But I have seen many many tweets much worse, made by progressives, which remain.”

    That’s not harm. Your aim, as I understand it, is the application of force to prevent harm being done to others, which is precisely what the Harm Principle is about! But Twitter are applying freedom of association here, they’re just being dishonest about the reasons. Or possibly they genuinely don’t understand what the libertarian concepts of harm prevention and non-aggression are about. Many don’t! 🙂

  • It might sound like that if you listen to other people’s paraphrase of ‘what I really meant’! 🙂 (Nullius in Verba, October 4, 2020 at 10:37 am)

    Or it might sound like that if one read Nullius’ own words.

    Speech can be criminal when it is not *merely* an opinion, but when it leads to consequences doing severe harm to other people.

    Nice, expansive verb ‘leads to’ there.

    I *do* generally support freedom of association, except (as always) to prevent harm being done to others.

    Again, one notices a certain lack of requirement the harm be intentional, amongst other issues – but maybe the word ‘severe’ gives free speech some protection. Nullius’ list starts severe

    “your notion of ‘harm’ makes it perfectly acceptable to be dragged in front of a state committee for stating opinions …

    No. It’s about beating people up, sexually assaulting them, threatening them …

    (which, Nullius knows as well as we do and as well as the Tasmanian commission does, is not something the senator has done, nor that her words evidence she has done), but the list goes on

    … firing them, denying them promotions, taking away their kids, refusing to serve them in shops, and generally making their lives a misery. It’s about banning them from using the facilities everyone else can use …

    (unimpressed that “… not letting them participate in sporting contests of groups in which they assert membership …” was not either explicitly included or explicitly excluded here)

    It’s about them not being able to rent houses, take out loans, sign contracts in their legal name, get decent jobs, or take a bus or visit a bar without getting hassled, threatened, and pushed around …

    The Australian senator was asking whether one could

    speak freely about women’s rights and the reality of biological sex without being censured or fired by their employer

    and Nullius’ reply is that

    People are entitled to their beliefs about “biological reality”, no matter how outdated and wrong. But those attitudes become a problem when they cause harm to be done to others.

    Note the passive tense – ‘to be done’. ‘Harm’ (to Nullius) appears to include someone pushing someone else around in a bar after the senator’s question enters the public domain, but it does not seem to include someone pushing someone else around in a bar after hearing members of the Tasmanian commission speak vehemently about the monstrous wrongs they are now righting.

    Some here dispute that this shows a ‘free speech absolutism’ greater than theirs, but Nullius explains that:

    What I *understand* is that you’re closet authoritarians who want freedom for yourselves but not for any group of which you disapprove.

    John Stuart Mill’s father, James Mill would agree. He simply hated Edmund Burke. Nullius’ often mentions his son; would John Stuart Mill himself agree?

    Perry says we should, “look at all his views rather than just cherry picking the nice ones”. Nullius gets some support from ‘all his views’ but some opposition from “the nice ones”.

    Mill did more than just prefer the kind of democracy in which

    “the sovereign Many have let themselves be guided (which in their best times they have always done) by the counsels and influence of a more highly gifted and instructed One or Few.” (‘On Liberty’, John Stewart Mill, 1859)

    Mill’s idea of freedom meant the right and freedom of the ‘gifted and instructed few’ to break retrograde laws and flout retrograde customs, while denying the right of the ‘Many’ to have any similar right or exercise any such freedom against the laws passed by the elite few, or to evade any inconveniences of their customs. That Mill – the Mill that Perry so expressively described – would support Nullius. To that Mill, laws, let alone customs, that sack and punish the expressers of ‘outdated’, ‘wrong’ views could be the very essence of freedom, precisely because, to that Mill, those who question ‘modern’, ‘correct’ views are not as free to resist as those who hold them are to impose. Where Burke sees freedom as a process, Mill sees it as a ‘correct’ result.

    However John Stuart Mill had a pattern of making ringing assertions based on a vision the politically-correct could like, but then adding devastating provisos they would like less. Can Mill ensure “that no scattered particles of truth are buried and lost in the ruins of exploded error” if exploded error is indeed well buried whenever the government thinks it might ’cause harm’. Mill said, “He who knows only his own side of the case knows little of that.”, but how well can anyone know an opponent’s case if laws inhibit expressing any part of it that might ’cause harm’? Above all, what comes of Mill’s belief that you should try to learn your opponent’s case from the presentation of believers in it, not from the caricatures of those who despise it, when the believers are nervously looking over their shoulder at the Tasmanian equal opportunities commission?

    So if we rephrase Nullius’

    I’m not convinced yet that the law does forbid what the senator did. But I don’t know

    into ‘I’m not convinced yet that J.S. Mill would agree with me. But I don’t know’ then I might be persuaded that Nullius could make an argument for Mill agreeing – though only at the price of then endorsing Perry’s “utter cunt” description of Mill, so I would prefer to think that caveating Mill would overcome elitist-bigot Mill.

    It’s interesting to analyse Mill, but it’s not that important. What Edmund Burke might say, and what a court of originalist judges applying the first amendment might say, matters far more to me.

  • Above all, what comes of Mill’s belief that you should try to learn your opponent’s case from the presentation of believers in it, not from the caricatures of those who despise it, when the believers are nervously looking over their shoulder at the Tasmanian equal opportunities commission?

    I agree. It is why I always urge people on ‘my side’ to read Communist Manifesto, Little Red Book, Prison Notebooks, Capital & all the rest of the dismal tomes around which the very worst of the world revolves. Don’t just read the hostile critiques. That said, reading Farewell to Marx (Conway) & Fatal Conceit (Hayek) first does help with actually understanding them better 😆

  • Nullius in Verba

    “(which, Nullius knows as well as we do and as well as the Tasmanian commission does, is not something the senator has done, nor that her words evidence she has done)”

    I’ve not seen what she wrote, or what her accusers have claimed about it. All I have is the brief summary quoted above, which as it was Claire’s presentation of her own side of the case is sure to cast her in the best light and her opposition in the worst. There’s nothing wrong with her doing that. And I’m not saying she’s wrong. I’m just saying I’ve not seen the evidence. Have you? And do you know for certain that the Tasmanian commission has, too?

    “Mill’s idea of freedom meant the right and freedom of the ‘gifted and instructed few’ to break retrograde laws and flout retrograde customs, while denying the right of the ‘Many’ to have any similar right or exercise any such freedom against the laws passed by the elite few, or to evade any inconveniences of their customs.”

    You appear to have got it exactly backwards. Mill’s “Many” here is the common opinion that TGs should have the same rights, and should be protected. He is arguing that we should not go along with the common opinion, but should allow mavericks and dissentients to speak. Claire Chandler is a candidate for his “gifted and instructed few”.

    I am not countenancing the sort of “hero-worship” which applauds the strong man of genius for forcibly seizing on the government of the world and making it do his bidding in spite of itself. All he can claim is, freedom to point out the way. The power of compelling others into it is not only inconsistent with the freedom and development of all the rest, but corrupting to the strong man himself. It does seem, however, that when the opinions of masses of merely average men are everywhere become or becoming the dominant power, the counterpoise and corrective to that tendency would be the more and more pronounced individuality of those who stand on the higher eminences of thought. It is in these circumstances most especially, that exceptional individuals, instead of being deterred, should be encouraged in acting differently from the mass. In other times there was no advantage in their doing so, unless they acted not only differently but better. In this age, the mere example of non-conformity, the mere refusal to bend the knee to custom, is itself a service. Precisely because the tyranny of opinion is such as to make eccentricity a reproach, it is desirable, in order to break through that tyranny, that people should be eccentric. Eccentricity has always abounded when and where strength of character has abounded; and the amount of eccentricity in a society has generally been proportional to the amount of genius, mental vigour, and moral courage it contained. That so few now dare to be eccentric marks the chief danger of the time.

    It’s an argument for eccentricity, for people who don’t follow the herd to be able to speak out. It’s *not* an argument for such people to be granted any special power or privilege (I am not countenancing the sort of “hero-worship” which applauds the strong man of genius for forcibly seizing on the government of the world). People only follow them because they are persuaded by their arguments (“The honour and glory of the average man is that he is capable of following that initiative; that he can respond internally to wise and noble things, and be led to them with his eyes open“).

    Mill is perfectly clear. He’s supporting people like Claire Chandler being allowed to dissent from the common opinion, not because she’s necessarily right or better than anyone else but simply because dissent is good, and I agree with him on that. To turn this into some sort of call for a dictatorship of the privileged elites seems to me like a bizarre misreading!

    What would such a reading make of the one who said “The happiness or misery of mankind, estimated by their feelings and sentiments, and not by any theories of their rights, is and ought to be, the standard for the conduct of legislators towards the people”? Is this not obviously a call to abandon solid principles about constitutional rights and instead rule by populism, opinion polls, and protecting people’s feelings? I don’t think so.

    But I’d still be interested in bobby’s explanation on whether libel/slander law breaches the 1st amendment. (His view on the constitutionality of the privileges of government might be interesting, too.)

  • bobby b

    “But I’d still be interested in bobby’s explanation on whether libel/slander law breaches the 1st amendment.”

    Yes, they do, just as the prohibition against machine guns and mortars breaches the Second.

    These are hard-fought long-standing (and rare) exceptions established for political reasons (and reasons of safety – I’m not a Sherman tank nut) that do, indeed, violate the exact words of our Constitution.

    I’m probably the most constitutional-absolutist person here, and even I’m not going to expend a lot of energy trying to overturn these exceptions.

    But you’re simply saying that we violate the Constitution in these instances, so why not in any instances we find convenient, and I’m not willing to go so far. Your approval of prohibiting speech that is insulting or jarring or even unaffirming means that the exceptions will always overwhelm the rule, because we can always find someone who doesn’t feel fully self-actualized when someone else says something they dislike hearing.

    Allowing for hauling us before a tribunal to “explore” whether or not our speech has hit some undefinable boundary of insult leaves speech thoroughly chilled. Sure, if your fact-finders and law-interpreters are good and honest, you stand an excellent chance of being cleared. But, you cannot be sure that such conditions will exist, and even then, as Perry says, the process itself is the cost. So we simply won’t speak, out of fear.

    It’s not enough that we have a system that doesn’t harm speech greatly. We want one that encourages speech.

    “His view on the constitutionality of the privileges of government might be interesting, too.”

    Not sure how this fits in here. But . . .

    I view this much the same as I view qualified immunity for government functionaries. It undoubtedly lets bad people get away with bad things. But, it exists for a reason.

    That reason is, without such protections, we allow for undemocratic highjacking of the legislative process, through the paralysis of lawfare. We allow things to be said in the making of our legislation freely, because that makes for better legislation, devoid of the strictures of “being polite.” If it is determined that such statements are lies, the remedy comes at the ballot box.

    I do find Warren’s dismissal strange, in that, IIRC, it used to be that sovereign immunity applied only to statements made in legislative session, and I don’t think a Tweet satisfies that definition. But, we’ll see how this progresses through the courts.

  • Nullius in Verba

    “But you’re simply saying that we violate the Constitution in these instances, so why not in any instances we find convenient, and I’m not willing to go so far.”

    No, I wasn’t simply saying that. I was saying that exceptions are made for very precise and well-defined moral-philosophical reasons, which I had naively assumed would be recognised and routinely taught in American Constitutional theory. I’m somewhat surprised that you say they’re not.

    Justice Frank Murphy famously wrote: “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.” [Chaplinsky vs New Hampshire 1942.] I’m surprised they’d be “well-defined and narrowly limited” if nobody had ever given thought to the reasons for it.

    “Your approval of prohibiting speech that is insulting or jarring or even unaffirming means that…”

    … means that I’ve yet again failed to make clear that I DON’T approve of prohibiting such speech. I’ve no idea why anyone would think I do.

    “Not sure how this fits in here.”

    It doesn’t really. I just noticed it when I was looking up the reference, and thought it was pretty weird, and didn’t see how the normally constitution-minded US justified something like that.

    But thanks for your thoughts.

  • bobby b

    “Justice Frank Murphy famously wrote: “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem.”

    . . . has never been thought . . . ” No, not by proponents of excepting some things from Constitutional reach.

    Read the words:

    Congress shall make no law . . . abridging the freedom of speech.

    Justice Murphy may never have thought that creating an exception to this clear statement would raise any Constitutional problem, but that’s only because he was in favor of it. It clearly violates the exact words. To say that this has never been thought to raise a Constitutional issue is wrong.

  • Bobby b (October 4, 2020 at 11:08 pm), I have a question about your comment.

    (Before asking, however, I’ll note that I am about finished in this thread, so please feel no pressure to reply, or surprise if I then do not respond. I found it interesting, and sufficiently on-topic, to analyse Nullius’ “harm but not feelings” defence of speech restrictions; before it was explicitly islamophobic to utter words that might hurt muslims’ feelings, the claim that such words might inspire acts of less-purely-mental harm were used to justify ‘hate’ speech laws, so if we ever get feelings ruled out, that defence will return. But now I feel we’re responding to OT irrelevances floated in a Nullian attempt to restore some credibility to a claim of free-speech-absolutism. 🙂 However the topic has its own interest.)

    I was happy with SECOND AMENDMENT LIMITATIONS (Glenn Harlan Reynolds). I am not a lawyer and you are, but, just as some elementary knowledge of historical context protected me from misunderstanding what the 2nd amendment’s “militia” preamble meant (unlike some eager gun controllers), so Glenn’s explication of why your inability to buy a tank or an atom bomb over the counter does not violate your second amendment rights satisfied me. So while one could speak of contradiction with the literal words as someone today could (mis)understand them, it seemed to me that second amendment scholarship can do a decent originalist job on not contradicting the words as their original writers and audience intended and understood them.

    My first-amendment-limits knowledge is mostly about resolving possible conflicts with pseudo-public-space property-rights (e.g. Marsh v Alabama and after) and as regards that aspect it is arguable there is a real issue (or at least, I think I see that the supreme court has ruled sometimes one way and sometimes the other in fairly similar cases). But as regards the regulation of intentionally false statements made with malicious intent, I’d see that as much like your tank and the second amendment – no necessary contradiction between libel law and the originalist meaning of the first amendment’s words.

    ASIDE) While thinking about originalist/literalist meanings, I recalled Nullius up-thread:

    Speech can be criminal when it is not *merely* an opinion, but when it leads to consequences doing severe harm to other people.

    “your notion of ‘harm’ makes it perfectly acceptable to be dragged in front of a state committee for stating opinions …

    No. It’s about beating people up, sexually assaulting them … attitudes become a problem when they cause harm to be done to others.

    The literal meaning of those words could ban pornography under the harm principle even if restricted to the ‘severe’ start of Nullius’ long harms list. If the police find some porn in the house of a criminal, that gives license to ban licentiousness – a surprising position for anyone claiming to be a free-speech ‘absolutist’. But as to whether that was the original(ist) intent of its claiming-to-be-free-speech-absolutist-writer, I recalled the Jane Austen character who

    did not excel in giving those clearer insights, in making those things plain which he had before made ambiguous (Northanger Abbey)

    🙂

  • Nullius in Verba

    “No, not by proponents of excepting some things from Constitutional reach.”

    But the point was the proponents of that interpretation were the ones applying the rules – the judges, prosecutors, legislators, etc. There has certainly been debate about it, right back to Madison arguing the Sedition Act of 1798 only 7 years after the first amendment was ratified, and it’s clear that the Sedition Act was judged unconstitutional fairly quickly, but laws on libel, fraud, and threat have sat on the books for a couple of centuries, and nobody has done anything about it. There are plenty of people who have been prosecuted under those laws who I’m sure would have been highly motivated to appeal and have them thrown out as unconstitutional! Why was that possibility not entertained?

    “Read the words”

    Yes. I note the word “abridging”. That means to shorten or curtail from a pre-existing or predefined right or privilege. But the definition of “the freedom of speech” extant at the time was the English Common law, which was not limitless.

    If you start from the position of absolute freedom of speech, then not abridging it prevents one moving from that position. But if you start from a different place, interpret “the freedom of speech” to mean the right as it existed or was interpreted at the time rather than the absolute ideal, then all it says is you can’t make the situation any worse. It’s a one-way ratchet.

    Do you think the originators really intended to forbid any laws against lying under oath in court, framing someone for murder, forgery, couterfeiting, obtaining money by deception, impersonation, falsely claiming qualifications, false advertising, spying, passing military secrets to the enemy, etc.? Indeed, passing laws is itself an act of speech, and so no law (such as the first amendment) can be passed to restrict Congress’s ability to pass any law it likes! The first amendment would itself be in breach of the first amendment, in that it forbids certain acts of speech by Congress.

    I think the originators had a considerably more limited arena in mind. They wanted a free public/political debate; speech without tortious consequence. They wanted people to be able to express and debate their political, religious, moral, and scientific beliefs, without any government-mandated limits on the opinions people can hold or spread. But it was never intended to mean you can lie to the IRS about your income, and claim “free speech” as a defence!

    I confess, I had assumed that this would be obvious, the legal theories behind it well-standardised and far less controversial than it evidently is. But then I’m still in shock to discover people genuinely believed JS Mill was in favour of separate laws for elites! Well, you live and learn.

    What people are capable of believing is endlessly fascinating. Thanks, all, for an interesting and entertaining debate.

  • Nullius in Verba

    Niall, sorry, I missed your comment.

    “The literal meaning of those words could ban pornography under the harm principle even if restricted to the ‘severe’ start of Nullius’ long harms list.”

    I’m not sure I followed that. Do you mean filming a non-consensual BDSM sexual assault, rape, or beating/torture for pornographic purposes would be interpreted as ‘harm’? Revenge porn? Non-consensual voyeurism?

    Anything done with informed consent isn’t harm, in my book. Does that clarify?

    Don’t answer if you don’t want to.

  • Fraser Orr

    @bobby:
    “Congress shall make no law . . . abridging the freedom of speech.”

    Justice Murphy may never have thought that creating an exception to this clear statement would raise any Constitutional problem, but that’s only because he was in favor of it. It clearly violates the exact words. To say that this has never been thought to raise a Constitutional issue is wrong.

    I wish you were being nominated to the supreme court, there are all to few people who seem to think that. It is a curiosity that nobody seems to touch the freedom of the press, and they are zealous in the not establishing a religion thing. Move your finger down to the next amendment and it might as well mean nothing at all. So shall we generously say that the interpretation of these clauses is “uneven”?

    But it is also very important to point out that it says “Congress shall make no law…” not “Google shall make no rule….”

  • bobby b

    Niall Kilmartin
    October 5, 2020 at 11:30 am

    “Bobby b (October 4, 2020 at 11:08 pm), I have a question about your comment.”

    This may be a bit disjointed.

    “Absolutist” is, as all positions seem to be, not a binary choice, but a spot along a continuum. I am more absolutist than most, as I wish to see us adhere to the written words of the Constitution as closely as possible, without regard to attempting to discern “meaning” or “intent.”

    Clearly, in a society radically different than the one that existed at the Constitution’s drafting, we cannot do this completely. There are some areas in which we fudge. An “absolutist”, in this environment, is one who wishes to keep that fudging to a minimum.

    Reynolds’ brief is one attempt at that fudging. We all learn what a prefatory clause is in law school (and strangely the definition differs depending on who is teaching at the moment.) My reading of the language of the 2nd Amendment – “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” – is that it has an inexact set of phrases, followed by one strict and clear command that is in no way modified by those inexact phrases. Reynolds attempts to blend them all into a workable whole. I think his effort is worthwhile and admirable, but I think that it is artificial.

    Obviously, we cannot allow for the ownership and use of tanks. And so we deal with this disparity in different ways. Reynolds attempts to show that, of course, obviously, they didn’t MEAN tanks. I just think that they never considered such weapons when they wrote what they wrote. But I consider the strict following of our Constitution to be a – maybe the most important – reason that our country has done as well as it has done so far.

    And so I simply stick to the exact language as often as I possibly can, while acknowledging that it isn’t always possible. I turn a blind eye to tanks and mortars and simply accept that we’re going to limit our adherence to some extent – just as I do when contemplating libel, and lies, regarding the First Amendment.

    But that doesn’t mean I’m going to let go of adherence easily – which is what I see happening.

    Reynolds writes a fiction, in my mind. It’s a well-intentioned one, in which he tries to impose an order on disorder, and I agree with where he’s going with it. But I think it’s more honest to simply say, we follow the words except when we absolutely can not, and we don’t allow those few instances to provide the cover for straying even further.

    So, NiV’s position and mine aren’t that different. We’re arguing about where we wish to land on the continuum, not that we should or should not follow the Constitution. It just takes much more to convince me to stray from it.

  • Fraser Orr

    @bobby b
    Obviously, we cannot allow for the ownership and use of tanks.

    I’m curious — why is that obvious? FWIW, there are actually many people who do own tanks (though probably with disabled guns.) But I guess that is really the point. Perhaps a stronger question is “obviously we cannot allow for the ownership of nuclear weapons”, but the problem is that that is a wide spectrum.

    I just think that they never considered such weapons when they wrote what they wrote.

    The problem with this argument though is that they also never considered weapons such as AR-15s, or semi-automatic pistols. Rather, in their minds they were thinking of muzzle loaded rifles. And these really are two dramatically different types of weapon.

    The curiosity about the prefatory clause relating to the militia is that they give us some boundaries as to the type of weapon they were thinking of, namely the type of weapon that a militia would use (in fact, if I remember rightly there was a case before the USSC which allowed for bans of sawn off shotguns precisely because they were NOT the kind of weapons a militia might use.) But that brings us back to the fact that opposing weapons because they are “military style”, as we hear from the left a great deal, flies directly in the face of the words of the 2nd. In fact, a better argument would be (as was the case of the sawn off shotgun) that a weapon may be banned because it is NOT a military style weapon. Should we allow weapons designed for shooting rabbits or squirrels? You might make a case that the 2nd is less supportive of that than a fully automatic machine gun (or back to your original point, a tank.) One might also ban the tank on the basis that one cannot “bear” a tank even if you can keep one. I’d suggest that the fairest interpretation of the 2nd is that it reserves the people the right to keep and bear any weapon suitable for military use that can be both kept and borne.

    But I consider the strict following of our Constitution to be a – maybe the most important – reason that our country has done as well as it has done so far.

    I think that is true. But a piece of paper doesn’t keep a nation, people need to be willing to read the paper, and be bound by it, something that is less and less true. In a sense, I think, the constitution is used to justify things that its writers certainly never contemplated (abortion and gay marriage being two obvious examples.)

    Now of course I say all of this not in support or a particular rule for keeping and bearing weapons, or for or against gay marriage or abortion, but rather to try to establish that there are rules for us to follow, and if we don’t like them we should change the rules, not just ignore them or subvert them.

    And that brings me to a key point. We are told the constitution is a living document, which is something I totally agree with. The constitution as needed by a bunch of 18th century farmers and artisans does not meet the needs of the modern world, which is why the writers where really very smart. They provided a mechanism for the constitution to live and grow called “amendment”, designed to be difficult to slow down hasty changes to the fundamental, but doable, as evidenced by the fact that it has been changed 27 times.

    And I am reminded of that great statement by John F. Kennedy “Those who make peaceful revolution impossible will make violent revolution inevitable.”

  • bobby b

    “I’m curious — why is that obvious?”

    Politically, it’s obvious. We’d never get away with a reading of the FA that says tanks are okay, that says nukes are okay. We barely get away with maintaining adherence to the language to the extent of AR-15s. But we do, so far, and that position is closer to the “shall not be infringed” ideal than not having them, and so that’s the direction in which I push.

    The realist in me says that the militia language might give some good cover – see Reynolds – for arguing for a certain technological level of weapon, but that’s what it is. I’ll fight for ARs – but not for tanks, because I can’t win that one. My philosophy doesn’t say AR’s good, tanks bad – it says pursue the possible.

    So I push for us to follow as many of the rules as I think we can possibly politically get away with. Anything else gets us into things like “the Equal Protection clause covers everyone except those bastards from the Ivory Coast.” It ought to be hard to except anything. Every exception we allow makes the next exception easier.

    And, the amendment process? My biggest fear. We could easily end up with the South Africa constitution if we opened that Pandora’s Box. No, I’d rather deal with language that has been interpreted to death, and derives from four discrete pages, rather than start anew and let every judge in the country have a whack at telling us what “no” means in his new context and wishlist as he reads our new 2400-page abortion of a constitution.

    We have enough trouble agreeing on the meaning of 4534 words as it is. Heaven help us as we embark on a new project to interpret 244 sections and eight schedules of our new S’frica model. Think the political makeup of the USSC is important now? Wait until all of our legislation is contained within our huuuuge new constitution.

  • bobby b

    Sorry, forgot this part:

    “In a sense, I think, the constitution is used to justify things that its writers certainly never contemplated (abortion and gay marriage being two obvious examples.)”

    But, I think they did contemplate the philosophical and moral issues underlying those questions. Yeah, we moderns have bastardized some aspects of what they did, but I think they really did cover them.

    As to abortion, they said nothing – abortion existed then, just like now – and they said in the document that questions not dealt with in the Constitution were the realm of the states unless the feds pre-empted them. Blackman punted, and decided to try to make peace across the country. Good intentions, I have to credit him for that impulse, but he blew it. The Constitution made it clear that this was a legislative issue. To that extent, the drafters covered this. We just ignored them.

    Gay marriage? I think that was adequately covered in the Equal Protection Clause, at least insofar as marriage is a civil concept and not a religious one. Once again, they had gay people back then, and they could have explicitly said “no”, or “gay people aren’t really people”, or something, if that’s what they believed. But they instead went to First Principles – “we treat everyone equally in the eyes of the law”, without calling out exceptions, and so I think that gay marriage fits quite well inside of the constitutional guarantee of Equal Protection.

    But I do admit that I make excuses for the Constitution when I can.

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