November 2018


Free speech has never been ‘free’

By Megan Davis

The idea that all opinions should be ventilated is misguided

Almost 30 years ago, as an Aboriginal kid growing up just south of Brisbane, I commenced my formal education in Australian history at Trinity College, Beenleigh. Dr Hamilton Russell Cowie’s seminal work on the country’s past dominated the high-school history curriculum in Queensland, and the endemic role of racism in Australia’s nationhood was a revelation to me. And I am no Pollyanna. My Aboriginal grandfather and grandmother and father had all grown up during the era of compulsory racial segregation in Queensland. The other side of my family is South Sea Islander and my forebears were blackbirded from Ambae, Vanuatu. Even so, I recall being shocked by The Bulletin’s early social commentary on racial purity, the cultivation of Australian nationalist sentiment and its formal promulgation of the White Australia policy – one of the first acts of the Commonwealth parliament.

It should come as no surprise to me that Australia’s discourse on race continues to be so impoverished. Australia lurches from one race debacle to the next: Steve Bannon, Serena Williams, “it’s okay to be white” … racism always justified in some way, prosecuted by implausible arguments under an incoherent theory of “free speech”. IndigenousX founder Luke Pearson, borrowing from Futurama, occasionally posts a display board on Twitter that records the unexceptional and arguably normalised displays of public racism in Australia: it counts the “days since last blackface incident in Australia”. Zero.

These episodes reveal a fundamental misunderstanding. Free speech has never been “free”. It has always been fenced in by community standards, whether they be defamation or racial vilification (not to mention national security and commercial-in-confidence). The idea that any and all arguments should be ventilated in a mythical marketplace of ideas is sustained with great vigour by our media class.

For those huddled minorities crying out for the fourth estate to hold our own public figures and institutions to account, the proclamations of a “contest of ideas” are grating. The curious defence by some journalists of the relevance of Bannon was a case in point. One Australian journalist, in securing an interview with the Trump has-been, declared that she could discern no racist sentiment in his work.

One of the upsides of Twitter for the Australian consumer is the ability to curate specialised lists that permit one to follow political developments in countries from Mali to the United States. Anyone who follows US politics forensically knows that Bannon is on the outer with both Trump and Breitbart, and that Bannon is a run-of-the-mill racist. Yet the local press gallery’s justification for the prominence of his interview included the fanciful notion that Bannon, as an American public figure, needed to be held accountable by an Australian media. Really? Bannon must be held accountable to the Australian public? They have no relationship with him, nor he with them (other than a global concern for Bannon’s influence, which, in an entirely unorthodox assessment of his waning impact, is regarded by many Australian journalists as not racist). This confusion about jurisdiction is reminiscent of those defendants who plead the Fifth Amendment during criminal proceedings in Australian courts. Some say it’s influenced by Law & Order, and, if that’s the case, perhaps too many Australian journalists watch The West Wing.

To be honest, I’d rather scrutiny be applied to the minister for Indigenous affairs, who not only voted in favour of a Senate motion containing the white supremacist slogan “it’s okay to be white” but also has never been held accountable for the decision-­making of his department. Successive Australian National Audit Office reports have been scathing. The arbitrary decision-making and lack of record-keeping on decisions for millions of Commonwealth dollars alone justifies a national corruption commission. I’d prefer elected officials being held to account for actions here, in this country, in this parliament, now. Instead we get fawning over prime ministerial FIFOs to remote communities, and an embedded press pack that prosecuted so successfully a fiction of policy competence about former prime minister Tony Abbott that he has been appointed special envoy for Indigenous affairs. A cursory reading of those audit office reports should put to rest any notion that this man cares deeply for Indigenous policy.

Journalists clamoured to defend the Bannon interview on the basis of a right to speech far removed from the regulated version that is the daily reality. Ventilate all views, they declared. Air anything and everything, and challenge it! This is what Western civilisation hangs its hat on.

This distorted concept of free speech exposes the limitations of a legal and political system without a recognised and community-agreed charter of rights. The public understanding of rights – how routinely they conflict, how competing rights are balanced and how a conflict of rights is resolved – is slender. For example, when we discuss religious freedoms of expression, are we aware how often they collide with the rights of the child? Are we prepared to curtail religious exemptions granted to schools and hospitals in order to provide greater protection for mothers and children? There is a perennial campaign for reform, for a statutory charter of rights or a bill of rights that may enshrine in legislation, or by way of the Constitution, fundamental rights of all Australians. This is a battle worth fighting: in those nations with an agreed set of rights, the debates are unquestionably more measured and nuanced.

There is a common conflation of Australian and American free speech by some in the local media. The contours of American free-speech debates are set down by the Constitution, the US Supreme Court and American history, and are not always visible to the naked eye. American jurisprudence on the First Amendment shapes the ventilation of ideas and the boundaries of civility there. One simply cannot transplant notions of American political accountability and public civility from their jurisdiction to ours.

This is why I found the outrage about David Remnick uninviting Bannon to a New Yorker public event so curious. The pressure brought to bear on The New Yorker by its readership and other forces was, and continues to be, informed by American history and the lived experience of the American people. When issues of race are involved, their free-speech debates are often imbued with the history of slavery, African-American civil rights, and ongoing racial discrimination such as police brutality. This history is ever-present; it’s a continuous truth-telling. There are monuments erected in public spaces memorialising the extreme manifestations of violence against black people, such as the National Memorial for Peace and Justice in Montgomery, Alabama: a memorial to the lynching victims of white supremacy. The groupthink outrage among some Australian journalists at The New Yorker’s decision made me reflect on a number of things about Australia.

I wondered at the intensity of the outrage about Bannon and Remnick: Is this what you hang your hat on? The privileging of civil and political rights by Australian journalists is not dissimilar to that of Australian law students. I teach international human rights law. In this course we often problematise the notion in international human rights law that there is no hierarchy of rights. I ask my students whether this is true, and, if not, which rights have primacy. Australian students almost always universally privilege civil and political rights. On the other hand, international students and Aboriginal and Torres Strait Islander students privilege the right to housing, the right to shelter and the right to food, et cetera.

The point I am making is that the intensity of the response from the “free is free” cheer squad is informed by the world they inhabit, in which free speech is not just integral to their profession but also probably the apex of their rights universe – a world in which they do not want for food, shelter or safety.

To that end, Josh Bornstein, writing in Meanjin, is right to draw attention to the backgrounds of Australian journalists:

Overwhelmingly Australian journalists are middle class, free speech liberals. They oppose restrictions on speech – even hate speech – in favour of rational argument and the contest of ideas. They despise defamation laws, censorship and oppose stronger media regulation. A liberal ideology is a given but pragmatic self-interest is also at work. Journalists are in the business of selling their words and their stories. They are instinctively hostile to anything that may inhibit their work.

Bornstein adds, “Overwhelmingly, they have not experienced racism. Or poverty.”

The free-speech discourse of late is decoupled not just from the law but also from Australian history. The US history of racism is brutal, horrendous and unimaginable, yet well ventilated. The truth-telling is messy, difficult and ongoing. The legacy of white supremacy continues, and the country constantly grapples with racism in its many manifestations.

Here in Australia, there is an agreeable, patrician silence. The progressivism displayed on so many social issues goes missing on matters of race. There has been no proper ventilation of our history, and I am not limiting this to Aboriginal history. The history of white supremacy and racial purity that I first learnt of in Cowie’s textbooks is rarely referenced in contemporary debates about asylum-seeker policy or multiculturalism. The White Australia policy was a legislative framework passed by Australia’s parliament and enabled by the Constitution, both of which today are considered so sacrosanct that nothing can constrain the former and everyone is too timid to amend the latter. Where are the public monuments to the frontier massacres? Where are the public memorials to the ritualised institutionalisation of Aboriginal people on reserves and missions?

Globalisation means that agile, whip-smart journalists like ours are happy to stroll into the free-speech debates of other countries, such as The New Yorker controversy. But notions of “civil” and “rational” are not universal. Jason Stanley, writing in the Boston Review, rejects the John Stuart Mill “marketplace of ideas” as “predicated on a utopian conception of consumers”. He argues that “Disagreement requires a shared set of presuppositions about the world. Even dueling requires agreement about the rules.” The rules regulating free speech in the United States, formal and informal, are not based on a shared set of presuppositions between Australians and Americans.

Nor is there any agreement between me and many of the media on Twitter. In my own view, they have abdicated their responsibility to any higher principle by failing to put a blowtorch to the institutions and public officials who year after year waste taxpayer money on useless bureaucratic exercises of control and domination in the Indigenous domain. The Australian media’s once forensic reporting of Indigenous issues is no more. Deaths in custody, police brutality, youth detention and incarceration rates should dominate our newspapers, but they don’t.

The worst thing about this is the routineness of it all. The silence of race and institutionalised racism is so normal it’s mundane. It’s not dissimilar to the mundaneness of the frontier killings, as Noel Pearson once wrote: “It is not the horrific scenes of mass murder that are most appalling here; it is the mundanity and casual parsimony of it all.” The stinginess and casual indifference to the political economy of killing that Australia is built upon, and which persists today. And that’s why I found the glib dismissal of Bannon’s racism here in Australia and then the fierce defence of his right to ventilate anything and everything in America so galling. There is a push for truth-telling in Australia driven by the Uluru Statement From the Heart, but the longstanding silence on our history of racism means it’s difficult for many Australians to identify what racism is, journalists included. If it were otherwise, Indigenous public policy would not be in such a mess. For anyone to lecture Americans about free speech and the unconstrained ventilation of ideas in a country journeying so messily through the antecedents of its racist past is extraordinary. Or maybe it’s not. Maybe for Australia it is routine and mundane.

Megan Davis

Megan Davis is a Cobble Cobble woman from Queensland, a pro vice chancellor and professor of law at UNSW, and a member of the Referendum Council.

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