Martin Hirst has challenged a couple of points in this post. His responses are detailed here.
MORE: What would you do? Cut a great road through the law to get after the Devil?
ROPER: I’d cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned round on you-where would you hide, Roper, the laws all being flat? … Yes, I’d give the Devil benefit of law, for my own safety’s sake.
– Robert Bolt, “A Man For All Seasons”
The left-wing journalism academic Martin Hirst wrote in Journalism Ethics: Arguments and Cases that journalism ethics cross “fault lines”: uneasy divides between principles and the law, which can generate “earthquake-like tremors” that rock journalism and journalists and shape journalistic ethics. So it is perplexing that Hirst should have cheered so loudly [Correction: or not – see his reponse] when the Gillard government proposed a new government media regulator, and complained so bitterly when it backed down [again, see Hirst’s response]- and openly praised the decision in Eatock v Bolt.
Eatock v Bolt is easily the most thoroughly dissected case of journalism and the law in recent Australian history. Nonetheless, it is worth revisiting because it is a paradigm fault line, and probably the most consequential Australian case for journalism ethics and free speech of the past decade.
In April 2009, Andrew Bolt, the Herald & Weekly Times columnist who is the Devil made flesh for the Australian left, published two articles arguing that some “fair-skinned Aborigines” had chosen to identify as Aboriginal mostly as a means of career advancement. Nine of them successfully sued under the Racial Discrimination Act. So what does the case – and the reaction of the likes of Hirst – say about the state of freedom of speech and journalism in Australia?
Firstly, did Bolt breach the law? Well, obviously the court found that he did, and most observers, even critics of the relevant law, agree that Justice Bromberg’s decision was sound in law, as it stands. Still, some have expressed reservations about the law itself, expressing doubts about its implications for the ability of journalists to engage in robust debate, and for freedom of speech. This is what Hirst himself refers to as the “chilling effect” laws can have on editors and journalists. The very presence of certain laws can work to silence journalists.
Secondly did Bolt act ethically as a journalist? After all, not all ethical conduct is prescribed by law, and journalistic ethics are no exception: many issues in journalism ethics have little or no legal enforcement, and some journalism ethics (for instance, confidentiality of sources) actively clash with the law.
Bolt arguably violated several principles of journalism ethics. For instance, the Media Entertainment & Arts Alliance (MEAA) and the Australian Press Council caution against gratuitous racial emphasis. Yet, as Media Watch host Jonathan Holmes noted, it seems impossible to discuss racial identity without emphasising racial characteristics.
Both codes also warn journalists to respect their subjects’ privacy and sensibilities. While it could be argued that, as public figures, Bolt’s subjects had less of a right to privacy than an ordinary citizen, Bolt undeniably wrote his columns in a derisive, inflammatory tone, as Bromberg found. But, again, Holmes questions how a popular opinion writer would sell papers otherwise – and one must raise a sceptical eyebrow at such attacks of vapours, given the vituperative tone often used by Bolt’s opponents – Hirst especially.
But all journalism ethics strongly emphasise truth-telling and accurate reporting. Justice Bromberg argues that Bolt made several essential errors. Although Bolt has denied that his errors made a substantive difference to his argument, it is hard to imagine that more diligent research would not prevented mistakes that, at the least, gave his enemies an opening. Certainly journalists make mistakes, and they are prone to what Orwell called “the ignorance, bias and self-deception from which every observer necessarily suffers”: but that’s why journalists are trained as researchers, and held to higher standards of fact-checking and accuracy than the public. So Bolt was guilty of some slipshod research. But what Bromberg in fact especially emphasised was the language and tone of the articles: so Bolt was above all guilty of cheeky expression of opinion, which, to return to Jonathan Holmes’ point, is really rather his job.
But, for all that, didn’t Bolt deserve the protection of the principle of freedom of speech? After all, the idea that freedom of speech is a cornerstone of democratic freedom has been argued for over 300 years, from Spinoza and Paine, to Popper and Orwell. After all Hirst defends free speech (sometimes), and is a member of the MEAA, which explicitly acknowledges journalism as the “practical expression” of free speech, and acknowledges that such values often clash with both the law and professional ideals. This is where the fault lines gape wide.
So how does Hirst reconcile his defense of free speech with his celebration of Eatock v Bolt, and his loud support [Correction: see again for Hirst’s response] for the then-government’s attempt to impose a media overseer? After all, as journalist and lawyer Paul Chadwick warned in a 1999 lecture, “All roads from a so-called independent statutory tribunal lead back through a parliament to a cabinet room”.
Because Hirst doesn’t absolutely believe in free speech. He says, bluntly, “freedom of speech is not freedom to say whatever you like”. Nor is freedom of speech, he says, the highest principle of democracy, instead substituting a laundry list of his preferred principles, such as a “commitment to principles of common humanity” and fighting racism. What seems to escape Hirst, though, is that it is impossible to argue for these principles without freedom of speech. Thus his own argument confirms that freedom of speech is the first principle of democracy. Give me freedom of speech, as the saying goes, that with it I may demand all my other freedoms.
Hirst’s ambivalence is emblematic of a growing tension, in academia especially, between “libertarian” and “public good” models of ethics. Although the idea of individual liberty has prevailed since the Enlightenment, more recently a creeping “communitarian” ideology emphasises group morality at the expense of the individual. Journalism is a field which has been particularly noted for a widespread movement away from the traditional emphasis on freedom of speech. Even in the 1940s Orwell chided “the weakening of the desire for liberty” among journalists and academics.
Indeed, such conflict has existed since idea of journalistic ethics was conceived. The earliest known discussions of journalistic ethics date to the Civil War era in the United States, where Wilbur F. Storey set off another paradigm fault line.
Storey, who famously declared “it’s the newspaper’s duty to print the news and raise hell!”, was an inflammatory journalist with an often loose relationship with the facts, who frankly made Andrew Bolt (or at least, the bogeyman Andrew Bolt of the Australian left) look like a paragon: at one time he was publicly horse-whipped by a burlesque dancer outraged by the “odious epithets” Storey published.
Storey was also a scathing critic of President Lincoln throughout the Civil War, and in 1862, Union soldiers shut down Storey’s Chicago Times. Lincoln immediately intervened, ordering that the suppression be lifted. Although he subsequently vacillated, Lincoln ultimately decided that freedom of speech should be protected at any cost except where publishers might be working direct injury to the Union, such as by publishing details of troop movements. Lincoln thus affirmed the principle of direct threat of physical harm as the only limitation on freedom of speech, first established by John Stuart Mill.
So here we see another fault line: between Mills’ Harm Principle, as it became known, “intimidation” as expressed in the Racial Discrimination Act, and Hirst’s assertion that freedom of speech isn’t freedom to say whatever one likes. As Mill argues, and Lincoln’s decision shows, the Harm Principle establishes that only a direct threat of physical injury should curtail free speech. Bolt’s articles, while inflammatory and no doubt offensive to at least the people named, could hardly be construed as inciting physical injury.
Should even the undoubted offence caused by the articles be enough to cause their censure? Certainly under the law, and probably within at least some codes; but, in the words of Salman Rushdie, it is precisely at the point that something offends that “the defense of the freedom of speech begins”. Orwell likewise argued that the principle of free speech lapses whenever we fail to defend unpopular opinions.
“I disapprove of what you say,” wrote Evelyn Beatrice Hall of Voltaire, “but I will defend to the death your right to say it”. It is at that terrible but … that we are tempted to draw the line. But … sometimes, against our will, we have to be prepared to straddle the fault lines and defend even the people we don’t like. Bolt’s enemies should have had the clarity to forego their tribal hatreds. Whenever you deny the freedom of speech of one person, potentially at least you are risking your own. Because having established that freedom of speech is not inviolable, what recourse do you have, if in turn yours is violated? In fact, this is precisely what happened.
In June 2016, following a series of acrimonious Twitter exchanges, Hirst was dismissed as a lecturer by Deakin university [Clarification: Hirst resigned – see his response]. The university maintained that Hirst had violated the university’s code of conduct for academics, while his supporters argued that his sacking was an attack on academic freedom, and freedom of speech. Yet, having argued that freedom of speech does not grant anybody the freedom to say whatever they like, how can Hirst argue for his own freedom to do so? Having argued that free speech has consequences, how can he expect to escape the consequences of his own speech?
Like Bolt, Hirst is not an easy person for his opponents to defend. An unrepentant Marxist, and an abrasive and combative presence on social media, he is as much the Devil for conservatives as Bolt is for the Left. The unedifying Twitter melee that cost him his job was sadly typical of its breed. It is important, then, to remember that Christopher Hitchens described his defense of Holocaust denier David Irving as one of the proudest moments of his life. Freedom of speech is meaningless unless it means the freedom of the people and their opinions we don’t like.
Furthermore, as Hitchens said, the person who has foolish, unpopular, even outright wrong opinions, actually deserves even more robust protection of their freedom of speech, because in doing so they either provide an opportunity to be proven wrong, or to challenge groupthink: “How do I know that I know, except that I’ve always been taught this and never heard anything else?”
So sometimes you have to defend even the Devil. Because if you deny the benefit of the law to the Devil, you leave yourself nowhere to hide.
A final clarification:
What apparently wasn’t clear here was that the question about “consequences of free speech” was rhetorical: my whole point was that there shouldn’t have been any – and the right, as much as the left, should have defended that.
Free speech, as far as I’m concerned, is an issue that should cross tribal lines. My whole point was that the right, who howled when the left failed to defend the free speech of Andrew Bolt, should be ashamed of themselves for not defending the free speech of Martin Hirst. Snickering into their merlots because some cartoon villain for their “side” got taken down was not good enough. Free speech is for everyone, or no-one.
As Chomsky says, if you don’t believe in freedom of expression for people you despise, you don’t believe in it at all.