Giving Up On National Classification

There’s an air of unreality about the Senate’s review of the National Classification Scheme.
Its final report was released in late June. On the face of it, many of its recommendations are overdue.
For instance: classification should be consistently applied to all mediums of delivery. The same classification system should apply to TV, radio, videogames, mobile devices, and so on. Better that than our current odd and incoherent array of government and self-regulatory codes, which seem to have been developed entirely from scratch for each individual medium.
Then there’s lots of recommended tweaks to the classification system, and a call for more funding for classification bodies. All this is standard for a Senate committee report.
But, meanwhile, the entire foundation of Australia’s classification system has collapsed.
As the committee’s report acknowledges, “the committee would prefer that the National Classification Scheme treat all content equally, regardless of the means used to access it. However, the scale and borderless nature of the internet complicates the practicality of this preferred approach.”
The word “complicates” seems to understate the problem somewhat.
Under no circumstances could an Australian classification agency even begin to categorise online content against any rating scheme. In 2008, Google was indexing 1 trillion separate webpages. YouTube claims its users upload the equivalent of 150,000 full-length movies every week, and it would take 1,700 years for one person to watch all of its content already online.
And under no circumstances could the Australian Government apply the principles which animate our classification system to online material – one of which is “everyone should be protected from exposure to unsolicited material that they find offensive”. Even if you thought protection against offence was a worthy goal of public policy, there’s simply no way to do so.
The committee just gave up, writing in its report it “did not receive enough evidence to make specific findings on this issue”, presumably hoping other government inquiries might be able to sort it out where they could not.
This was the first major inquiry into the National Classification Scheme since it was introduced more than a decade ago. And they squibbed it.
The internet challenge should be an opportunity to rethink the purpose of the government classification programs as a whole.
The committee’s failure is all the more acute considering potentially classifiable film and television is increasingly being distributed online, aided by consumer plug-in interfaces which allow Australians to connect their television to the internet.
Media consumption is rapidly moving out of the reach of government classifiers.
As a consequence, attempts to quarantine film, television, or computer games from the Australian market do little but encourage piracy.
Take videogames, whose censorship has been so thoroughly circumvented that reform seems more formality than necessity. Yes, it would have been nice if gamers were able to purchase adult-only games at retail stores. But with online shopping, international shipping, and, of course, downloading, there are few serious barriers to getting hold of banned games like Mortal Kombat or Left 4 Dead 2.
And for online and mobile videogames, classification is in practice voluntary.
It took five years for World of Warcraft – one of the most popular games in history – to be classified by Australian regulators, because, it was an online game.
It’s easy to forecast similar situations occurring with film and television, once a) Australians become more comfortable downloading or streaming film and television from overseas, and b) entertainment business models adjust to a world where most media consumption is online.
That’s not a question of if, but when.
The inevitable slide of government media classification into irrelevancy does not mean classification will disappear entirely. It’ll just go private.
Non-profit groups which rate films according to ethical or religious criteria have been around for a long time. There’s a cottage industry of conservative Christians in the United States judging Hollywood films for nudity and swearing and unethical behaviour. Sites like www.commonsensemedia.org provide far more information and greater detail than the Australian Government. Parents looking for kids films or games in the new media world have a wealth of resources to assess appropriateness.
And, of course, there are the wide range of filters one can install on a home computer that’s used by children to control their internet use. Parents have had to take matters into their own hands already.
The Senate committee’s air of unreality is most dense when it discusses the location of adult magazines and films being displayed in retail outlets near products which appeal to children.
Pornographic magazines and over-the-counter DVDs are almost the definition of an industry in decline. They are not the classification system’s biggest issue right now.
It seems clear the purpose of the Senate review was not simply to assess the efficacy of classification, but to dredge up the usual claims that the media is ignoring community standards.
This is a Senate hobby. In the past few years, the Upper House has solemnly investigated issues like swearing on TV after some people complained about Gordon Ramsey and Big Brother.
Many politicians use discussion about classification as no more than opportunity for moral grandstanding.
But that’s not the real game. If our classification system cannot deal with the fact that entertainment is moving online, then its long-term viability must be seriously in doubt.

Free speech in the climate debate

You’d think that climate sceptics deserve free speech as much as everybody else.

That, however, isn’t the view of the ABC’s media criticism program, Media Watch. In an episode this March, Media Watch host Jonathan Holmes called for the government to use a practically defunct regulation to restrict the free speech of climate sceptics because he disagreed with the content of that speech.

Two days later, GetUp! — the ‘progressive’ membership based lobby group — responded to this call to action, launching proceedings with the government regulator, the Australian Communications and Media Authority.

GetUp! are being predictably self-aggrandising. What’s much more concerning is that Media Watch called for this attack on free speech in the first place. Broadcast weekly for just fifteen minutes at a time, Media Watch is one of the ABC’s flagship programs — a self-appointed press watchdog, dedicated to exposing media perfidy, ethics breaches and bias.

To do so, it is handsomely supported. According to a report, this quarter of an hour show received $1.4 million in funding to broadcast in 2003. Media Watch may be a short program, but (squeezed in between the national broadcaster’s other mass-market political fare of Australian Story, Four Corners, and Q&A on Monday nights) it is at the heart of the ABC’s self-identity as a countervailing force against the commercial media. In short: Media Watch is the ABC’s official arbiter of press ethics.

So it was quite a big deal when Media Watch conclusively demonstrated that, on the right to free speech, it’s one of the bad guys — asking for the legal system to step in and manage the vigorous public debate about climate change.

The program opened with an extended discussion about the number of climate change sceptics hosting AM radio shows, their take on climate science, and the fact that they interview more sceptical scientists than non-sceptical ones.

Of course, it’s hardly news some radio commentators prefer to interview certain guests more than others. ‘Opinion maker has strong opinion’ would not stop even the smallest press. And this is not the first time Holmes has been concerned about sceptic success. On The Drum in February 2010, he bemoaned that climate sceptics are winning because they’re the ones with ‘the passion, and the commitment.’ It’s an old tune, and clearly one which he is personally passionate about. That’s fine.

Yet on this particular Media Watch episode, Holmes went one step further. He argued the radio hosts are in breach of the Code of Practice governing commercial broadcasters which mandates ‘reasonable efforts are made … to present significant viewpoints when dealing with controversial issues of public importance’.

And the reason the regulator hasn’t enforced the code against Alan Jones and his fellow sceptics? ACMA ‘won’t or can’t enforce the Code unless someone complains it’s being flouted.’ Nudge nudge, wink wink.

When I raised Media Watch’s seeming hostility to freedom of speech on The Drum , Holmes was indignant, writing:

So Media Watch suggested they should do what the Code requires, and ensure that ‘reasonable efforts are made … to present significant viewpoints when dealing with controversial issues of public importance’. Such as, just occasionally, interviewing scientists who maintain that the evidence points to dangerous, man-made global warming — scientists who represent by far the majority scientific view — as well as (not instead of) scientists who disagree. And I said that it shouldn’t need complaints to the ACMA to make that happen. How ‘chilling’! How restrictive! What an enemy of free speech I must be!

Well, yes.Genuine supporters of free speech reject the idea that speech which is in any way objectionable — as climate scepticism clearly is for Holmes — has a regulatory solution.Someone who combs regulations (and the Codes of Practice are regulations, even if they are developed in consultation with the broadcasters) looking for ways to alter another’s speech cannot ever be described as a friend of freedom of expression.

On Twitter a week later, he dug himself deeper, arguing that ‘Chris Berg reckons requiring tv radio to be fair = assault on freedom’. In his eagerness to have the government’s regulator step in to manage the speech of climate sceptics, Holmes has completely failed to think deeply about the free speech implications of what he suggests.

The right to freedom of speech is meaningless without the right to choose that speech. No-one should be forced to say something they do not believe as a condition of saying something they do.

In the United States between 1949 and 1987, the ‘Fairness Doctrine’ obliged broadcasters to do exactly that. The regulation compelled contrasting views to be presented whenever an issue was raised on the air.

And certainly, the doctrine resulted in balanced and civil broadcasting environment. But it did so by exclusion. It was easier to avoid controversial topics than risk a regulatory penalty for being perceived unfair.

Testifying in 1984, the broadcaster Dan Rather argued that ‘Once a newsperson has to stop and consider what a Government agency will think of something he or she wants to put on the air, an invaluable element of freedom has been lost.’

The Fairness Doctrine quickly became a political weapon. During the Kennedy Administration, the Democratic National Committee produced activist kits teaching party members ‘how to demand time under the Fairness Doctrine’.

The Nixon administration also used the Fairness Doctrine to threaten the licenses of hostile broadcasters. Angered by The Washington Post’s Watergate coverage, Richard Nixon is on record saying that ‘the Post is going to have damnable, damnable problems … They have a television station … and they’re going to have to get it renewed.’ The Fairness Doctrine is now widely recognised as having had a ‘chilling effect’ on speech.

Compared to the Fairness Doctrine, the Commercial Broadcasters’ Code of Practice is a model of restraint. But, as Media Watch helpfully demonstrated, that is because it is largely defunct — it has been interpreted benignly, and wielded rarely. Media Watch advocated that this free speech status quo be overturned, and the Code of Practice be used as a political weapon. After all, I doubt Media Watch would argue that gay broadcasters should be compelled to air the views of homophobes, or Christian broadcasters to air the view of anti-theists. Instead he called for the Code to be used solely against those discussing Australia’s biggest, most controversial, political issue — the carbon price.

Some claim a Code of Practice is the price broadcasters pay for using public spectrum; that the rest of the media is free to do what it likes but there must be special rules for those using the airwaves. The history of the Fairness Doctrine, and the egregious actions of GetUp and Media Watch, show just how slippery a slope that view is. ‘Public interest’ rationales easily become political interest rationales.

Considering how central the climate change debate is to contemporary Australia politics, it is striking how fast and loose Holmes is willing to play with the principles of free speech.

In column after column, speech after speech, proponents of climate change action argue that science has a communications problem. The government has now hired a climate communicator, Tim Flannery, who is profiled elsewhere in this issue of the IPA Review. As Media Watch demonstrates, that ‘communications problem’ is starting to become a cause for regulatory action itself.

Holmes’s regret in February 2010 that sceptics are winning the debate has become Holmes’ declaration in March 2011 that the government should step in to forcibly ‘balance’ it.

Referring to George Bush’s 2003 declaration to the Australian parliament that he loved free speech, Holmes’ predecessor David Marr lamented to the Media Watch audience ‘If only more Australian commentators shared his view.’ Indeed. And if only Media Watch did as well.

Media Watch: Everyone Loves It Until They Advocate Censorship

On last week’s Media Watch, host Jonathan Holmes called for the government to use a practically defunct regulation to restrict free speech because he disagreed with the content of that speech.

Two days later, GetUp – the useful idiots of Australian politics – responded to this call to action, launching proceedings with the government regulator, the Australian Communications and Media Authority.

That the speech in question was about climate change and the speakers were Alan Jones and Chris Smith is absolutely beside the point.

Media Watch conclusively demonstrated that, on the right to free speech, it’s one of the bad guys – asking for the legal system to intervene in a vigorous public debate.

The program opened with an extended discussion about the number of climate change sceptics hosting AM radio shows, their take on climate science, and the fact that they interview more sceptical scientists than non-sceptical ones.

Completely within Media Watch’s brief, sure, and completely banal. It’s hardly news some radio commentators prefer to interview certain guests more than others. “Opinion maker has biased view” would not stop even the smallest press.

Yet Holmes went one step further. He argued the shock-jocks are in breach of the Code of Practice governing commercial broadcasters which mandates “reasonable efforts are made… to present significant viewpoints when dealing with controversial issues of public importance”.

And the reason the regulator hasn’t enforced the code against Alan Jones and his fellow sceptics? ACMA “won’t or can’t enforce the Code unless someone complains it’s being flouted.”

Nudge nudge, wink wink.

Defending his stance on Twitter, Holmes said on Wednesday that “if you check you’ll see I said stations shouldn’t need to be told by [the] regulator”. The key word there is “need” – Holmes believes that broadcasters do, currently, need to have their speech regulated; their freedom of expression limited.

The host of Media Watch would not respond to further questions.

Don’t just read the transcript – watch the show. Smugness has always been part of the appeal of Media Watch. But when tackling subjects with more weightiness than the NT News or an ABC 24 production error, complacent insinuation and innuendo are increasingly a substitute, rather than a complement, for argument.

Nevertheless, if Holmes believes that GetUp or his audience have misinterpreted his meaning and intent – or simply if he thinks the government regulating public debate is a bad thing – then he could say so on air.

The right to freedom of speech is meaningless without the right to choose that speech. No-one should be forced to say something they do not believe as a condition of saying something they do.

In the United States between 1949 and 1987, the ‘Fairness Doctrine’ obliged broadcasters to do exactly that. The regulation compelled contrasting views to be presented whenever an issue was raised on the air.

And certainly, the doctrine resulted in balanced and civil broadcasting environment. But it did so by exclusion. It was easier to avoid controversial topics than risk a regulatory penalty for being perceived unfair.

Testifying in 1984, the broadcaster Dan Rather argued that “Once a newsperson has to stop and consider what a Government agency will think of something he or she wants to put on the air, an invaluable element of freedom has been lost.”

The Fairness Doctrine quickly became a political weapon. During the Kennedy Administration, the Democratic National Committee produced activist kits teaching party members “how to demand time under the Fairness Doctrine”.

The Nixon administration also used Fairness Doctrine to threaten the licenses of hostile broadcasters. Angered by The Washington Post’s Watergate coverage, Richard Nixon is on record saying that “the Post is going to have damnable, damnable problems… They have a television station… and they’re going to have to get it renewed.”

The Fairness Doctrine is now widely recognised as having had a ‘chilling effect’ on speech.

Compared to the Fairness Doctrine, the Commercial Broadcasters’ Code of Practice is a model of restraint. But, as Media Watch helpfully demonstrated, that is because it is largely defunct – it has been interpreted benignly, and wielded rarely.

Monday’s Media Watch advocated that this free speech status quo be overturned, and the Code of Practice be used as a political weapon.

After all, I doubt Holmes would argue that gay broadcasters should be compelled to air the views of homophobes, or Christian broadcasters to air the view of anti-theists. Instead he called for the Code to be used solely against those discussing Australia’s biggest, most controversial, political issue – the carbon price.

Some claim a Code of Practice is the price broadcasters pay for using public spectrum; that the rest of the media is free to do what it likes but there must be special rules for those using the airwaves. The history of the Fairness Doctrine, and the egregious actions of GetUp and Media Watch, show just how slippery a slope that view is. “Public interest” rationales easily become political interest rationales.

When not actively hostile to free speech, Media Watch is just missing in action.

Take, for instance, the most prominent and disturbing violation of free speech in recent years: the class action lawsuit against Andrew Bolt under the Racial Vilification Act is as clear cut an attempt to silence a critic of public policy as this country has seen in many years.

So, unsurprisingly, the lawsuit has not been mentioned once on what is supposed to be the ABC’s flagship program of media analysis.

Referring to George Bush’s 2003 declaration to the Australian parliament that he loved free speech, Holmes’ predecessor David Marr lamented to the Media Watch audience “If only more Australian commentators shared his view.”

Indeed. And if only Media Watch did as well.

The Weight Of The Word

Are Julian Assange and WikiLeaks really doing anything that unusual? After all, leaks are one of the foundations of contemporary journalism. Leaks are one of the best techniques we have to peek behind the curtain of government. So the aggressive political reaction to WikiLeaks is very disturbing.

Governments, whether democratic or totalitarian, do not deserve a presumption of secrecy. Few people objected on a philosophical level to the leaks out of Labor’s cabinet during the federal election. Few people have principled objections when the press releases documents they’ve received from whatever legal or illegal source.

There’s no question Assange is a media publisher. He describes himself as a journalist, albeit of an unconventional type. So the only material difference between what WikiLeaks is doing and “normal” leaking is scale. The diplomatic cables have dominated global politics for two weeks, but we’ve only seen the contents of just over 1000 of them. There are 249,000 to go.

The slow (and for US diplomats, excruciating) drip-feed is far from the “data dump” critics have accused Assange of doing.

Few of the cables have been released without first having been given exclusively to the mainstream press. The Sunday Age has some today. These papers have been vetting the documents for sensitive or risky information.

WikiLeaks only publishes the edited cables. WikiLeaks even asked the US State Department for help editing unnecessarily risky documents, a practice common when the press deals with classified material. The State Department refused. The Pentagon has had to admit there is no evidence anybody has ever been harmed due to a WikiLeaks release. Yet the WikiLeaks cables depict more than just “gossip”. They reveal things we didn’t know and shed substantial light on things we thought we did.

For instance, it’s one thing to hear commentators and self-aggrandising leaders in the Labor Right say Kevin Rudd was a control freak. But it’s quite another to read it in a private internal memo of our closest ally. We now know that Rudd’s freakishness was affecting our relationship with the world.

Since the cables have been released, we’ve learnt that: Silvio Berlusconi and Vladimir Putin have a relationship bordering on corruption, US diplomats have been asked to spy on UN leaders, the same US diplomats believe a disturbing number of foreign leaders have mental health issues, and the US pressured Spain to shelve human rights cases against American officials. There will definitely be more.

To oppose WikiLeaks is to oppose freedom of the press and, more critically, free speech. Strip away Assange’s revolutionary libertarian rhetoric and inflated sense of self, and what we have is a media outlet that’s innovative but is not really doing much different from what the press has been doing for centuries. Which makes the events of the past week particularly significant.

Corporate support for WikiLeaks is being stripped away. Amazon.com, which was hosting WikiLeaks for a short time, dropped its account. The company had received calls from staff of the chairman of the Senate Committee on Homeland Security: asking “Are there plans to take the site down?”

Another company, Tableau, which was providing software for WikiLeaks to visualise the data, was also contacted by congressional staff. They severed their relationship with the site too.

Visa and MasterCard followed suit, banning donations to WikiLeaks. So too did the Swiss PostFinance, which held a WikiLeaks bank account. PayPal suspended payments to the site because it felt threatened by a letter implying WikiLeaks had broken an unspecified law.

There are too many volunteers and donors and copies of the site around the world to fully shut it down. But these political attempts to choke WikiLeaks’ funding and foundations are a clear breach of freedom of the press. They illustrate the use of political pressure to silence a media outlet that has done no more wrong than cause embarrassment to the United States government.

Sure, PayPal and Amazon.com could have refused to co-operate. It is not at all clear that WikiLeaks has broken any US laws. But put yourself in their shoes: would you defy Congress, the 535 members of which could destroy your business model with the stroke of a legislative pen?

After all, if we give governments power to make or break businesses through tax and regulation, we also give those governments power to threaten and cajole those businesses into co-operating with their political aims. This is a far more disturbing turn of events than highly publicised rantings of bloggers calling for Assange’s assassination.

Assange may be reckless. From the US government’s point of view, he is virtually stateless.

And the retaliatory attacks by the independent internet hacking group Anonymous on those corporations gives WikiLeaks an unjustified veneer of illegality.

Yet it is not the job of journalism to make the diplomacy easier, or to grease the wheels of communication between foreign leaders. Nor is it to protect diplomatic privacy.

The US government was unable to secure its internal communications. Whatever the long-term repercussions of the diplomatic leak – and they may be substantial – that colossal failure is to blame; not a journalist who, having received newsworthy information, publishes it.

The last thing we want is our media to be deferential or subservient to the interests of the state.

Of course, the battle between governments and the press is an old one. In a moment of well-timed irony, this week the US Department of State announced it would be hosting World Press Freedom Day in 2011.

No matter how new the medium, or how irresponsible its publisher, it is an absolute and fundamental infringement of free speech when a government tries to gag a media outlet it doesn’t like.

WikiLeaks and the virtue of transparency

WikiLeaks’s release of American diplomatic cables “may put lives at risk”. The White House spokesman Robert Gibbs claims that the release may damage the “cause of human rights”. WikiLeaks’s actions are “reckless” and “dangerous”.

Sounds serious. But we’ve heard these claims before.

When each of the Afghan and Iraqi war logs were released earlier this year, US officials lined up to condemn the whistleblowing site in the strongest possible language. The Afghan documents, “put the lives of Americans at risk”, according to the US national security advisor. The Department of Defense said the Iraq files dump “could make our troops even more vulnerable to attack in the future”.

On Sunday night a Republican Senator from South Carolina wildly argued on Fox News that “The people at WikiLeaks could have blood on their hands.”

The operative word in that sentence is “could”.

Having lived with WikiLeaks’s release of the Iraq and Afghanistan war logs for months now, Pentagon officials concede there is no evidence that a single person has lost their life as a result. Not one.

And when requested in the lead up to the latest release, the State Department refused to guide WikiLeaks as to which documents should be redacted to protect against “significant risk of harm”.

Instead they insisted the site delete all the documents and forget it ever happened – something the messianic and volatile WikiLeaks head Julian Assange was quite unlikely to do.

Crazy-brave, with all those lives at stake. But more likely just a bad bluff. Major government departments aren’t good at poker.

The passionate assertions that national security will be compromised, that lives will be lost, that the cause of human rights will be set back: shameless, unadulterated hyperbole, by a government not even sure what’s about to be released. Transparent attempts to dissuade WikiLeaks from revealing uncomfortable material.

To take a random example out of the 243 documents released so far, it mustn’t be nice to have it publicly known US diplomats think Bavarian premier Horst Seehofer is “unpredictable” and has only “shallow foreign policy expertise”.

The full diplomatic archive of a quarter of a million documents will be released in dribs and drabs over the coming months.

Some of what we’ve seen is little more than banal gossip. Nobody needed leaked diplomatic communication to realise, say, Dmitry Medvedev “plays Robin to Putin’s Batman” as one cable put it, although it’s great fun to see it in an official document. Or that Kim Jong-Il is a “flabby old man”. That Silvio Berlusconi is “vain” with a “penchant for partying hard”. It will shock the international community to learn Hamid Karzai is “extremely weak”.

One overwhelming impression from the cables which have been released: professional diplomats are unimpressed by the politicians they’re compelled to work with. If only we could see their pens turned against their US political masters.

Other cables are more important, but still only embellish what we know already.

For instance: the US government has been trying to convince other countries to resettle its Guantanamo Bay detainees for years. But thanks to WikiLeaks we now know how desperate those US negotiators sound: officials tried to convince Belgium accepting prisoners would be “a low-cost way for Belgium to attain prominence in Europe”.

This is not materially new information. But it is more revealing than the sterile reports we’re familiar with.

After all, it is one thing to know the world’s superpower is negotiating to resettle detainees. It’s quite another to learn that the superpower sounds like an anxious salesman as it tries to do so. Or like a shonky political party treasurer selling tables to a fundraiser: Slovenia was told resettling a detainee would earn Slovenian leaders an audience with Barack Obama.

These cables further underline how the original decision to set up Guantanamo Bay dropped the US into a complicated long-term legal bind from which it is still struggling to extricate itself. It’s not revelatory. But the desperation is very, very revealing.

So too is the deep mistrust within the Middle East towards Iran.

Arab leaders in the region endlessly crow about Israel, but in private it is Iran they worry about. The cables vividly show that the leadership of Qatar, Abu Dhabi, Oman and Bahrain are all deeply concerned about Iran’s nuclear program. Saudi Arabia has been urging a US attack on Iran.

Analysts have been saying this for years, of course. But the unadorned cables make their points starkly and unambiguously.

Julian Assange is anti-war. But when the world reads the Egyptian president telling the US ambassador to only enter dialogue with Iran “so long as the [US] does not believe a word [the Iranians] say”, the case for dealing with Iran as soon as possible is strengthened, not weakened.

The documents are unlikely to damage America’s global reputation.

While foreign governments will kick up a fuss about what they read, they know how diplomacy works. They’re worried they could be the victims of the next WikiLeaks release.

Neither are they likely to be of great interest to foreign intelligence services. At a minimum, 3 million American soldiers and officials have access to the cables and the clearance to read them. That’s the security problem, not WikiLeaks. Let’s assume much of these cables have leaked before, just less publicly.

In the past, the US government itself made use of WikiLeaks to expose corruption and mismanagement in the United Nations. One of George Bush’s senior officials said in July, “Transparency and accountability in government and international institutions is a best practice and of great importance and WikiLeaks previously has been a force for good in the area.”

It must be harder to see the virtue of transparency when you’re the target.

Chris Berg is a Research Fellow with the Institute of Public Affairs. Follow him attwitter.com/chrisber
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Silenced In Court

Andrew Bolt is getting sued. Don’t applaud yet. There’s been a lot of outrage about the federal government’s proposed internet filter. But lawsuits like the one now faced by the prominent conservative Herald Sun columnist are as much a restriction on freedom of speech as anything Communications Minister Stephen Conroy has come up with.

Nine people are suing Bolt for an article that claimed their Aboriginal self-identification was “fashionable”. He had said they all had part-European, part-indigenous heritage (and fair skin) with an opportunity to describe themselves as a range of nationalities. But, he wrote, they chose to describe themselves as Aboriginal. Doing so gave them “political and career clout”.

At worst, Bolt is deliberately and provocatively disrespectful.

But as their lawyer has pointed out, there are two tests of whether someone is Aboriginal. The first is an objective genealogical test: a fairly clear cut question of whether they have Aboriginal ancestors. The second is subjective: whether a person chooses to self-identify as indigenous, and whether they are “communally” regarded as such.

Bolt’s columns criticised political appointments and government awards that pivot on an individual’s Aboriginality. They’re absolutely within their rights to apply for those grants, prizes and positions. But like it or not, by sponsoring things like indigenous-specific art and literary awards, the government makes what constitutes Aboriginality a political question.

And it’s a question academics have been trying to unpack for decades. Universities teach courses in the “concept of Aboriginality”. Surveying the literature in 2002, the Parliamentary Library could only conclude “an individual’s ethnic identity is always to some degree fluid, multiple, differing in degrees, and constructed”.

Of course, Bolt tackles the issue with trademark belligerence. The merits of his argument will now be tested in court. But put aside the conservative commentator. This isn’t about the collected works and opinions of Andrew Bolt. And put aside the complexities of racial identity, Aboriginality and reconciliation.

This case is troubling because of what it says about our right to freedom of speech. If successful – or just really expensive to defend – this lawsuit could have a stifling effect on political debate.

The 19th century philosopher John Stuart Mill argued that only by airing contested views publicly and freely could the truth be known. Societies need free speech if only to test and challenge controversial opinions.

And we’re not going to have those necessary debates while legal action stifles one side. No matter how wrong or misguided that side may be.

Silencing Bolt doesn’t just silence him. It potentially silences the speech of others who might be afraid of being similarly dragged through the legal system.

After all, Bolt and his employer can afford to defend themselves. No doubt they have lawyers on call. Newspapers know their way around court.

By contrast, bloggers, amateur journalists, Twitterers and Facebookers commenting on sensitive political issues – for whatever reason, with whatever motives – are much more exposed to punitive legal action than newspaper columnists are.

Should only the rich be able to have controversial views? If anything is going to suffocate the blossoming citizen media, it will be lawyers.

Bolt is being challenged under the federal government’s Racial Discrimination Act. But that’s hardly the only law on the books that has a damaging impact on free speech. Our politicians have a long and shameful history of using Australia’s defamation laws to sue their critics – threatening someone with a defamation suit is a public relations tactic.

In Victoria, our Racial and Religious Tolerance Act, introduced in 2001, has been co-opted as a stick for religious groups to hit each other.

First, the Islamic Council of Victoria took the fundamentalist Christian Catch the Fire Ministries to court. Then a Wiccan prison inmate took the Salvation Army to court. Then the Australia-Israel Jewish Affairs Council threatened to take the Islamic Information and Services Network of Australasia to court.

That’s a shabby record for a law supposed to promote tolerance, not division.

Suppressing offensive views can be counterproductive. The churches and mosques targeted by the Victorian Racial and Religious Tolerance Act were able to say their beliefs were being persecuted – attracting more followers. The victimised dissident is a hero, not a villain.

To his credit, Bolt is a prominent critic of Victoria’s vilification laws. Last year, the Human Rights Consultation Committee faced the task of recommending what should appear in an Australian bill of rights. It struggled to balance our right to free speech with a new “right” demanded by some – the right to not be offended by the speech of others.

But there are an infinite number of ways people could be offended. How could we possibly prevent all outrage?

You can have the right to free speech, or you can have the right to be protected by the government from the offensive speech of others. You can’t have both.

There are other ways to respond to distasteful views.

Refuse to buy the Herald Sun. Tell your friends to do the same. Condemn it in other opinion columns. The solution to bad speech is more speech. If something is offensive, it deserves to be condemned, loudly and often.

This week saw the first Aboriginal member of the federal House of Representatives sit in Parliament. Ken Wyatt is a Liberal. He promised to advocate for Aboriginal and Torres Strait Islander people in Parliament. His mother was one of the stolen generations. In his maiden speech, Wyatt thanked Kevin Rudd for the 2008 apology.

That’s a genuine step towards reconciliation. Wielding the legal system as a weapon to try to silence critics isn’t – no matter how offensive they might be.

Neutering The Net Is About Repression, Not Protection

It seems like only yesterday that the country was prosperous and the Labor Party was going to make everyone’s internet faster.

But now the Federal Government’s great broadband gift is floundering in the waves of the financial crisis and Communications Minister Stephen Conroy is pushing ahead with an internet filter that will dramatically slow Australian internet speeds.

The Australian Communications and Media Authority conducted tests earlier this year on six filters that could be imposed on internet service providers. Five slowed internet speeds by at least 20 per cent. And two of them crippled speeds by more than 75 per cent.

And this is before we look at their habit of falsely blocking legal sites. A 1999 trial of internet filtering (censoring the internet has long been a bipartisan goal) even accidentally blocked some government websites. Filters have improved since then but, as ACMA’s test revealed, it is a certainty that some sites will be incorrectly blocked – let’s be honest, the technology to efficiently and effectively censor the internet isn’t quite ready yet.

Nevertheless, technology has a habit of getting better, given enough time. It’s more than just technical issues that makes internet censorship a terrible idea.

Last year, Mr Conroy said that: “If people equate freedom of speech with watching child pornography, then the Rudd Labor Government is going to disagree.” Fair enough. But to claim the filter is designed to eliminate child pornography is too tricksy by half.

After all, child pornography is already illegal. And imposing an elaborate filter on every Australian internet connection is unlikely to have a significant impact on the child pornography trade – as everyone who has sent an email or tried to download a song is aware, there is a bit more to the internet than static web pages. Child pornography isn’t just sitting on openly accessible websites waiting to be downloaded – from what we know about it, it is traded clandestinely by abhorrent individuals. It takes police work and forensics to uncover those sorts of criminals. The dark recesses of the internet won’t be disturbed at all by the new filter.

Who knows, perhaps accusing the entire country of being potential child pornographers polls really well in telephone surveys?

Nevertheless, the biggest problem with the filter isn’t technical and it isn’t its likely failure to reduce child pornography.

The biggest problem is a little word that Mr Conroy slipped out in the middle of a Senate committee hearing. The pilot filter program will not only target the existing blacklisted sites, most of which are child pornography, but will also target “unwanted” content, whatever that means.

The Government has developed a secret list of 10,000 unwanted sites (there are only 1300 on the current blacklist).

But what the Communications Minister wants on the internet and others want on the internet are likely to be two very different things. Nick Xenophon doesn’t want online gambling. Stephen Fielding doesn’t want hardcore pornography and “fetish” material – if Mr Fielding gets to wield his senatorial power over the filter system, expect shares in www.feet.com to slump. If the Government gets the power to control internet content, legal pornography, gambling and violent images will all be candidates for online censorship.

Of course, whenever the censorship of legal material is raised – with its massive implications for freedom of speech in Australia – the Government immediately tries to bring the discussion back to child pornography.

It’s a bit embarrassing that we’re discussing censoring the internet at all. What does it say about Australian politics that the reaction of both major parties to such a liberating technology is to demagogue about its dangers? Our politicians rave about evils online more than any other liberal democracy. As a consequence, the Federal Government’s proposal is far more extensive than any other internet censorship scheme outside the totalitarian world.

There is a certain element of Australian political culture that sees censorship and banning as the panacea to almost every social and policy question. But wowserism dressed up in concerned rhetoric about the sanctity of childhood is still wowserism.

Protecting Kids From TV Swearing Is Not Canberra’s Job

One of the most appealing features of Australian democracy is our enthusiasm for parliamentary committees. Committees are to politicians what Bob the Builder DVDs are to three-year-olds – if a politician is busy with a committee inquiry, then they can’t get up to any mischief.

So it was easy to be happy when it was reported earlier this year that swearing on television shows – which most people would agree is one of the top issues facing Australia today, perhaps second only to jaywalking – was to be investigated by a federal Senate committee.

Sure, it’s an embarrassing waste of taxpayers’ money to have politicians spend their days discussing the need for politeness when responding to complaints about TV programs. But doing so is a lot better than if they spent that time thinking up new taxes. Senators have to do something – let them deliberate over which words shouldn’t be said on TV.

But the final 80-page report released late last month (it took nine senators four months to write) isn’t limited to platitudes and speechifying. It recommends that all new televisions sold in Australia be compelled to offer a “parental lock”, which prevents children from watching programs above a certain classification.

On the surface, this seems like a good idea, doesn’t it? Adding a parental lock to new televisions isn’t likely to cost consumers too much more money.

But is good parenting impossible without help from Canberra?

The parental lock is very similar to a program implemented in the US after a surge in controversy about violence on TV. All TVs sold in that country have to have a V-chip installed that allows parents to block certain shows. (Journalists joked that if the sex-obsessed Republicans had introduced the measure it would have been called the S-chip.)

But while 70 to 80% of American parents claim that they are “seriously concerned” about their children watching inappropriate TV programs, their concern doesn’t extend to actually using the V-chip. In 2004, a Kaiser Family Foundation survey found that only 15% of parents had even tried switching it on. As a consequence, some US politicians have argued that the V-chip should be set at its most restrictive level as its factory default.

It’s easy for parents to claim in a telephone poll that they worry about their kids mimicking the rude words heard on TV. But you have to wonder just how seriously concerned those parents are if it is too much effort to switch on a function that their TV already has built into it. If the US experience is anything to go by, the parental lock will be a flop. And Australian television is already much tamer than TV in the US.

After all, just as you don’t have to buy your children junk food even if they really want it, you don’t have to let your children watch rude programs.

One of the more bizarre reasons the nine senators thought that parents needed help from the Federal Government was because televisions were increasingly being placed in kids’ bedrooms, far from the watchful eye of adults. But perhaps concerned parents could consider simply moving the offending TVs somewhere children don’t sleep.

Indeed, monitoring what TV programs children watch isn’t actually that hard. And for those parents that feel they need some technological help, there are numerous TVs and set-top boxes that already offer parental locks. Is it that hard for parents to inquire about these features when they first buy their TV?

Parents who want to shield their children from the rougher parts of pop culture can easily do so with off-the-shelf technology and simple common sense.

But nevertheless, politicians of all stripes pander to moralising conservative lobbyists for whom the real issue isn’t that their children could hear rude words on TV, but that there are rude words on TV at all. As usual, politicians aren’t actually thinking of the children. Politicians are thinking of marginal electorates.

Perhaps some perspective is needed. Parents and governments won’t have failed if the next generation of Australians lead happy and productive lives, but curse like drunken pirates. Society won’t crumble. The Senate committee should have asked everybody to take it easy – Canberra isn’t a parenting aide.

Free Speech Means The Right To Obscene Speech, Too

The French philosopher Voltaire never actually said the words he is best known for: “I disapprove of what you say, but I will defend to the death your right to say it.” His biographer invented the saying to explain Voltaire’s views on free speech. Still, it’s a great line.

But how many people agree with it? How many people would be willing to go to the barricades for racist, sexist or obscene speech – the sort of stuff that exists only in the deep bowels of the internet? Probably very few.

But if we are concerned about free speech at all, we need to defend some people saying some pretty terrible things.

When debating politics, few people would favour locking up their opponents, no matter how ill-informed or distasteful their views may be. There’s a big difference between strongly disagreeing with somebody’s opinion and insisting that they are banned from expressing it.

The solution to bad speech is simply more speech – one cannot successfully rebut an argument without first allowing that argument to be expressed.

This is the reason that David Marr’s Quarterly Essay – which argued that the Howard government was somehow suppressing dissent – was so popular last year. Political censorship is abhorrent. Almost everybody is happy to let others rant and rave about any political point they like – monarchy, capitalism, foreigners stealing our jobs, the phallocentric patriarchy etc. So there is legitimate anger when the government tries to silence even the most ridiculous opinion about politics.

Nevertheless political censorship is so rare that it is hardly a pressing issue in Australia. Commentators trawl the papers trying to charge the government as an opponent of political dissent. Every possible infringement – real or, more often, imagined – gets highly publicised.

But if we really want to defend free speech in 2008 – if we believe that free speech is a right that we are born with, not a limited gift given to us by politicians – sometimes we may need to make common cause with extreme pornographers, racists, misogynists and other very dislikeable individuals.

Last Tuesday, a 38-year-old Brisbane man, William Reimers, received 12 months probation for possessing five fictional stories about child abuse that he had downloaded from the internet.

Unlike Bill Henson’s famous photographs, there is no ambiguity about the purposes of these stories. With titles like “Daddy’s Best Little Girl”, they were clearly not art. Reimers was charged under laws that consider descriptions of children in sexual activity as child pornography.

Cate Blanchett and her 2020 team will be unlikely to rush to the defence of somebody downloading dirty stories from the internet. But in many ways, Reimers’ arrest is more worrying than the controversy surrounding Henson. Where there are legitimate concerns about Henson’s artistic practice – at what age can somebody “consent” to nude photography? – there are no such concerns with Reimers.

The stories he collected were entirely fictional. In fact, as far as we know, nobody was harmed at any time while they were written, put on the internet, downloaded, or read. And there doesn’t appear to be any indication that the stories were incitements to commit violence. Sure, the stories were the products of a sick mind. But would the arguments presented in the case against Reimers also apply to non-fictional – and non-erotic – descriptions of child abuse? This is a slippery slope.

Having to defend people with repellent views and beliefs is the grimy side of standing up for civil rights. In the US, which has a richer tradition of liberty than Australia, doing so is widely recognised as part of the job. The American Civil Liberties Union has defended not just the uncontroversial rights of religious liberty, immigrant rights and gay rights, but also the rights of neo-Nazis and the Man-Boy Love Association to express their views. Nobody in the union would agree with the views of these groups, but they defend their right to express them.

If we think that the right to free speech stops where perversion starts, then we allow judges and politicians to impose their views of morality upon the rest of us. A right which is limited by the opinions of a conservative legislator is no right at all.

Film Classification Laws Out Of Sync With The 21st Century

With Tim Wilson

Recently a small St Kilda video store, Out Video, drew the attention of the federal Attorney-General’s Department for selling and renting imported titles that have not been classified in Australia. Bureaucrats may be doing their job, but by acting against a small niche video shop, they have inadvertently exposed critical flaws in our film classification laws.

Out Video markets films primarily directed at the gay and lesbian community. Many are produced overseas and never achieve general or selected release in Australia. And because of the prohibitively high cost of classification, they never get classified.

The A-G’s Department contacted Out Video because they were selling and renting out titles not given the all-clear by the Office of Film and Literature Classification (OFLC). As a result, Out Video says nearly half their stock will have to be shelved permanently.

This highlights two major flaws in Australia’s classification regime:

1. The regime has not adapted to a marketplace that allows media to be accessed through more than just domestic broadcasters and distributors. Consumers demand access to an increasingly wide selection of entertainment from overseas, and they can get it through the internet.

2. Our classification laws are not designed to accommodate small markets. Instead, the classification processes are optimised for large, general-release films. The system simply doesn’t lend itself to small-run films, and the law unfairly harms businesses trying to service niche markets.

The targeting of Out Video by the A-G’s Department should give it and the OFLC impetus to review the classification laws. With a vibrant and diverse international entertainment sector, these laws should not blanket-ban content. Such a policy makes a mockery of the liberal legal principle that all things should be legal unless there is a reason to make them illegal.

Many of the films these niche providers import have already been classified in the UK, US and Canada. So one possible solution is to recognise comparable classifications from other media-exporting countries.

But a preferable outcome would be the elimination of mandatory classification. If consumers demanded classification to guide their decisions, then distributors would have a commercial incentive to seek it.

Furthermore, classification need not be the preserve of government. Many private classification regimes exist to rate films on special criteria (the Christian community, for example, has pioneered many alternative rating systems). Under such a regime, films that failed to obtain any form of classification would be burdened with the trepidation of some consumers to buy or rent the product.

The removal from sale or rent of Out Video’s titles will do nothing to reduce their availability. All the “offending” titles are available from online stores outside the country. Australians can order them online and watch them at home, avoiding the scrutiny of the censors.

Furthermore, internet-aided piracy is now extremely common. By denying consumers legal access to small-run films, mandatory classification provides additional incentives for consumers to download illegal copies.

The sale of unclassified material is hardly uncommon. If government bureaucrats want to clamp down on unclassified videos, they should take a walk down Victoria Street or Sydney Road. Both are hives of foreign-language video stores that stock unclassified foreign-language films. In all likelihood the Government wouldn’t dare act in these cases: the electoral backlash would be considerable.

It is unlikely that homophobia played a part in the Government’s decision to enforce the law: it acted because it received a complaint. But if homophobia was the cause of that complaint, it would merely demonstrate how the classification laws can be manipulated.

Current film classification laws undermine access to films for different sections of the community. And businesses that are trying to meet a diverse market demand for unique niche content should not be punished for doing so.