Free Speech and Buried Truths

The idea that any and all ar­gu­ments should be ven­ti­lated is mis­guided

The Monthly (Australia) - - CONTENTS - Com­ment by Me­gan Davis

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-ofthe-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 de­ci­sion­mak­ing 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

Aus­tralia lurches from one race de­ba­cle to the next: Steve Ban­non, Ser­ena Wil­liams, “it’s okay to be white” …

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.

Here in Aus­tralia, there is an agree­able, pa­tri­cian si­lence. The pro­gres­sivism dis­played on so many so­cial is­sues goes miss­ing on mat­ters of race.

Sculp­ture by Hank Wil­lis Thomas at the Na­tional Memo­rial for Peace and Jus­tice in Mont­gomery, Alabama. © Ray­mond Boyd / Getty Im­ages

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