Friday, November 30, 2012

An Open Letter to Brian Wightman

Dear Tasmanian Attorney-General Wightman,
Recently I posted about my concerns about a proposed amendment to the Tasmanian Anti-Discrimination Act (Anti-Discrimination Change Requires More Scrutiny).  This amendment, ostensibly designed to control bullying, appears to go much further and potentially have a major impact on various forms of political speech in Tasmania.  I've now seen the Hansard transcript of the debate in which Elise Archer (Liberal, Denison), Michael Ferguson (Liberal, Bass), Brian Wightman (Labor, Bass) and briefly Kim Booth (Green, Bass) spoke (the amendment passed on party lines), and I've posted all the relevant excerpts up on Google Docs for anyone interested. It's notable that Ms Archer not only raised the same concern I raised about the lack of a proper free-speech exemption for the new Section 17, but also quoted from a long letter by the Hobart Community Legal Service Inc raising many concerns about the proposed change.

(As there have been problems for Liberal lawyers who interact with shady characters recently, I advise that I did not have any accidental coffees with Ms Archer prior to her quoting me.  Indeed, I did not know that she had seen the piece at all!)

I'm going to make some comments about my view of your speech and what I think it says about your political views, and then at the end I'm going to ask you a question.  And I'll ask it now too:  if your amendment is passed by the Legislative Council, will this open letter still be legal?  I ask this because nothing you have said so far has reassured me that it will be.  But I think that everything I say in it consists of the sorts of things that people should be allowed to say - and that it should be totally clear that people will be allowed to say.  It isn't.

Of course, I agree that the amendment, if passed by the LegCo, does not simply ban all communication someone finds offensive, and some of the criticisms may have overestimated the impact in this regard.  A person must be offended, humiliated, intimidated, insulted or ridiculed on the basis of their political or religious views or some other attribute, and it must be the case that a "reasonable person"  "would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed." 

But that's just not nearly as big an obstacle as you think it is, and I don't think you have any real idea of why.  Take this from your speech for instance:




An issue such as the same-sex marriage debate is one that a reasonable person would expect fervent and passionate debate on and would not expect the expression of those opinions to be personally offensive.

If the "reasonable person" is as experienced in public debate as I am, they will know that many people are personally offended when it is even mildly pointed out to them in public that they have their facts wrong on an issue.  That a "reasonable person" wouldn't be offended by having their errors pointed out, or even being ridiculed when they were actually being ridiculous, is beside the point, because the law doesn't refer to the target of the insult necessarily being a "reasonable person".

Indeed, if everyone in Tasmanian public life knows that Person X is a hopeless mimophant who abuses others but is offended whenever they are criticised themselves, then a reasonable person having regard to all the circumstances, would know that Person X will be offended by any personal criticism, and hence would know that to criticise Person X is to offend them.  Your legislation includes no test as to whether the taking of offence itself is reasonable.

There's this:

The act seeks to keep the focus on the issues rather than on personal characteristics of people engaged in the discussion.  In this way it actually protects free speech by providing protection to the less confident and courageous, to allow them to express their opinions without fear of being bullied, ridiculed or intimidated for doing so. 

In the first sentence you are actually arguing that the law should be drawing a line that is so problematic that many internet forums are racked with moderation debate about where exactly it lies, and thus setting up this law as a kind of grand-scale comment-moderation experiment with the Tasmanian people and political debate as its subjects.  As it happens, on a forum I moderate, I think we've got the balance right on this.  Our rule is:

"Irrelevant insults about personal attributes are not permitted. For instance, irrelevant insults related to age, appearance, weight, gender, sexuality, personal life or lifestyle will generally not be tolerated."

But if, in the course of debate, people insult each other about each others' views on matters they are heatedly debating, that's quite different.  We do not get involved.  And nor should you.

Those of us who have been around the online debate block for a decade or two know that simplistic rules that seek, with good intentions, to disallow personal attacks, often assist bad debating behaviour, dishonesty and bigotry to flourish.  The issue of strawmanning was one of those I mentioned when I left Tasmanian Times.  Because Tasmanian Times attempts to exclude ad hominem attacks, certain kinds of posters repeatedly, mendaciously and deliberately misrepresent the views of others in order to make those views look stupider than they are.  They'd say it's just their view of what those they misrepresent are really saying.   As soon as someone calls them out on this repeated pattern of behaviour and points out that their views are false, intellectually lazy and dishonest, the person making that point has crossed the line in the sand into "personal characteristics".  Because the personal counter-attack is based on a pattern of behaviour rather than a political view as such, it's not the kind of counter-attack that you are going to make illegal, but it illustrates the sort of problem that can arise. 

As for the second sentence, of course people should be allowed to express their views without fear of being genuinely bullied or intimidated.  But to offend, ridicule, insult or humiliate someone for espousing a certain political view is not necessarily to bully or intimidate them at all.  Indeed, in cases where someone keeps publicly espousing political views that are clearly false and unfair to their opponents, it can be one of the best deterrents against that form of behaviour.  I've come to the same view as Ms Archer here: it would be better to enact separate laws to resolve the current morals panic about "bullying" - once, that is, you have worked out clearly what bullying actually is.

I'm not going to go down the same path as Mr Ferguson and quote that hackneyed old saying about disagreeing while defending unto death (etc).  It's more a famous misquote than a quote (Voltaire apparently never said it), and there are plenty of words Mr Ferguson disagrees with and does not defend to death or even at all.  Like "I do" when said by couples of the same sex.  But I am going to quote former US Democratic vice-president Hubert Humphrey, who said:

"The right to be heard does not automatically include the right to be taken seriously."

Free speech is just that: the right to speak.  It's not the right to control how everybody listening to you responds or whether people hearing your views respect them.  If someone is too sensitive a petal to express their views in public for fear of being ridiculed, offended or insulted by the reply, even with all the restrictions on defamation and hate speech that the law already provides, it's not the possible response that's preventing them from speaking up.  It's their own sensitivity, and there are plenty of solutions to that that they can look for if they really have to.

Consider the following hypothetical exchange:

Person 1: "The Tasmanian Labor Party are in fact a bunch of twelve-foot high Annunaki Reptoids disguised as humans and secretly led by Eric Abetz, who are engaged in a plot to dilute the human bloodline as revealed in a correct interpretation of the Protocols of The Elders of Zion"

Person 2: "Um ... er ... exactly what have you been smoking?"

Person 2 has knowingly ridiculed and insulted person 1 on account of person 1's political views and a reasonable person would probably guess that person 1 would be offended; crackpots often are.  Off to the Commission for person 2? It sounds like it to me.

On to another part of your reply:

There has not been a spate of litigation since the prohibition was introduced in 1998.  The attribute of gender has been protected by this section since that time.  It has not interfered with appropriate public discussion about gender and related issues.

Indeed not, and the reason for that is that if someone who happens to be a particular gender is pushing a view on gender issues that is offensive and ridiculous, then it is possible to get stuck into them harshly on the basis of their political view without ridiculing their gender.  And that is how it should be, and exactly what you propose to take away.  Another hypothetical exchange:

Person 3 (male): "Look, I have no problem with women.  Some of my best friends are women.  I just do think that really nothing but harm has come from giving them the vote, and that only men should vote. I'm not going to explain that further, that is just what I believe."

Person 4 (female): "Don't be so ridiculous.  You silly sexist dinosaur!"

Off to the Commission for person 4?  It sounds like it to me.  But Person 3 is the one who supports discrimination in this exchange.

Back to yours:

These amendments seek to strike a balance between an unfettered freedom of expression and protecting and supporting vulnerable people from unfair attack based solely on one of the attributes. 

They may seek to do that but it seems more likely that they go from a balance that is nearly correct anyway and push the scales far too much in favour of "vulnerability" (which in many cases means, thin skin) and preventing so-called "unfair attack", although your law really seeks to ban whole classes of attack whether they are fair or not.

and:

The amendments will not affect parliamentary privilege, which is designed to ensure frank and fearless parliamentary debates. 

Never mind what they might do to frank and fearless debates anywhere else.

I can go on picking holes in what you've said all week (finding anything that's not a hole would be the hard bit) but I think the key points are made.  The comments you have made in defence of this amendment suggest to me that you have not fully thought through the possible impact of this amendment on political speech in Tasmania, and that you really don't know exactly what that impact will be, and that, in fact, nobody knows.

They also represent views on the nature of free speech that in my view are fundamentally and dangerously misguided and fluffy, and that are even less excusable given that you're "protecting" free speech from things that mostly do not threaten it, and that it mostly has not needed protection from before. (And given that the amendment is flawed, that it is the product of a major consultation process, and that many people missed their opportunities to have their views ignored before, is no reason not to change it now.)

I find it hugely disappointing that we have an Attorney-General who holds such views on this subject and I hope that you will now let the LegCo know you made an error and won't mind if they greatly amend or remove the Section 17 changes.  If you won't admit your mistake in putting such a shambolic and potentially dangerous change before the parliament without showing that much sign of really knowing what you're doing, then I think you should resign.  The sorts of sentiments you have put on record here alone place you well down the road to being the worst Tasmanian Attorney-General in my lifetime, though I have nothing against your performance beyond this.  It is simply that these issues are important. 

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Now, let's run through the checklist for my comments in this letter, bearing in mind that your change isn't through the other place just yet.  Assume it passes, and then consider this letter's legality under your change.

First test: Have I "offended, humiliated, intimidated, insulted or ridiculed" you?  Well, I haven't intimidated (unless you count threatening to never vote Labor again until you get this one right or lose your seat).  I don't know if I've offended, but if I have, I don't apologise.  If I haven't ridiculed, then I probably wasn't trying hard enough; I shouldn't be too ranty on here, after all.  But what I have certainly done is insulted you, whether you care or are bothered or not, and with good reason.  You're a hazard to my idea of largely free political speech, your amendment may severely cramp my flaming style, and not only that, you're hugely adding to my workload as an internet forum moderator dealing with so many problematic posters.

Hard enough already keeping track of all the ways in which a forum post by a borderline-racist Young Earth Creationist or a mad sexist anti-Zionist can be illegal around different states of Australia without my own state adding ways that might eliminate 90% of what gets posted in some of our threads.  (And out of interest, if while in Tasmania, I use the internet to insult somebody who lives in the USA, and he insults me back and the comment is seen here, which of us if either is in breach?  How does Gutnick play out on all this?)

Second test: is it on account of your political views?  Yes, it clearly is, because it is your political views on the Anti-Discrimination Act which are the cause of my complaint. 

Final test: would a reasonable person, having regard to all the circumstances, have anticipated you would be at least one of offended, humiliated, intimidated, insulted or ridiculed by my letter?   I think they might, but who knows what a reasonable person would think about what would upset a politician's applecart?  I don't know that; I've seen no polling on it.

So Mr Wightman, if your amendment is passed by the Legislative Council, will this open letter of mine still be legal if I repost it then?  

I ask this because absolutely nothing you have said so far has reassured me that it clearly will be.

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UPDATE: Twitter Frenzy!

The following are the unexpurgated (but not necessarily in exact chronological order) minutes of a  Twitter exchange between the author and the Attorney-General shortly after this post was released.

KB: #politas bit.ly/UflaWp An Open Letter to @BrianWightmanMP (re Tas free speech Anti-Disc Act issues, no pseph content)

BW: @kevinbonham thanks for your feedback Kevin. I'm a reasonable bloke and I don't feel insulted at all.

KB: @BrianWightmanMP i expected that but amendment refers to insulting a person, which i clearly did, whether you feel insulted or not!

 KB: and a "reasonable" person describing their own offence level is not the same as one anticipating someone else's

BW: @kevinbonham will you be laying a complaint against yourself then?

KB: @BrianWightmanMP wouldn't have standing as not target. but if i wrote a post like that re a non-pollie, they might very well complain

BW: @kevinbonham Courts are quite capable of determining "reasonable person" - more to do with a community's judgment than individuals.

KB:  no comfort to anyone who needs to be dragged before the courts and have their time wasted before being cleared 

BW: @kevinbonham I'm sure the commissioner is well aware of common law...

KB: no guarantee against false prosecutions or time-wasting at earlier stages

KB: and this is the sort of law everyone affected needs to be able to clearly understand - not just lawyers/ADC

BW:  @kevinbonham why write about it if you don't understand?

KB: it is a potentially major change that your government has failed to adequately explain or clarify before passing

KB: and because you have used arguments in favour that in my view are terrible 

KB: if it is really harmless to free speech, you need to make that case clear and convincing. IMO, nowhere near 

BW: @kevinbonham you are more than welcome to have a briefing to further your understanding.

BW: @kevinbonham make an appointment - we'll set you straight and then you can write a more informed blog.

BW: @kevinbonham once again, thank you for your feedback. You will find my Hobart office number easily accessible.

KB: if there are any factual errors in my articles you have ample opportunity to correct them on the public record 

KB: thanks for the discussion. you are welcome to submit a reply to my site at any time 

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So, supposedly I need a briefing from Mr Wightman and others to set me straight and be more informed about what the change the Lower House has passed actually means in Labor's view.  Then I could go down the proverbial corridor and talk to the Liberals - and Mr Wightman's shadow is, unlike him, actually a lawyer - and get a very different "briefing" on exactly the same subject. 

This all although Mr Wightman was reported by Elise Archer in parliament as having seen my first article (which he didn't dispute) and although his reply - while refuting the odd thing claimed by the Liberals - refuted absolutely nothing that I argued in that piece. (It did, however, make me suspect that the Government is actually well aware that this goes well beyond just "bullying".)

By saying that my comments can become "more informed" Mr Wightman is implying there is information relevant to the issue that he has, but that he has not yet released.  If that is so, he should release it.

(The one thing I am adding an update to is this:

There's no reason to believe that the Government's intention in proposing these changes is to overhaul the fabric of permitted speech within Tasmania.  Rather, their genesis lies in the problem of bullying.

I think there is now reason, following Wightman's speech, to believe the Government knows full well this will have ramifications on debate that go beyond just "bullying".)

And really there's been no evidence presented yet that anybody, from Wightman, to the Liberals, to the Greens, to me, to the ADC, to the HCLS, to the Government's lawyers, to the press, really knows or even can know fully what these changes would do to public debate in Tasmania.  Such evidence could only come from experience of multiple equivalent jurisdictions with the same prohibitions operating over a long timeframe.  If there was such evidence, I expect we would be hearing about it, just as same-sex marriage advocates can point to places where same-sex marriage is legal and the sky has not fallen in any of the ways that were predicted by opponents.  If the best the government can do is draw blatantly misleading analogies with our experience under the previous more limited set of attribute restrictions, then that suggests that when it comes to complete knowledge of what it is doing, it simply doesn't have it.

Sometimes it's a good idea to introduce a law without knowing exactly what it does - when there are basic principles of justice or equality at stake, for instance, and no other way that might work to resolve them.  But here it's crystal clear that this is not the only way the Government could tackle the matter of "bullying", and that it could find ways to try to address "bullying" that do not impact on the cut and thrust of political debate outside the Parliament. 

And if the Attorney-General prefers to invite me to a "briefing", rather than point me to material on the public record that corrects or debunks my concerns, then that alone is a tacit admission that the Government has failed to place enough material on the public record to justify this change and address the many questions that it raises, and that that alone is further reason why it shouldn't occur. 

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