Spiked editor Brendan O’Neill

One of the more dispiriting moments in the speech wars occurred on Q&A last night, in a discussion around a new New Zealand law that criminalises certain forms of online communication allegedly intended to cause “emotional harm”.

Brendan O’Neill, Spiked editor, was arguing vociferously that the law shouldn’t be introduced, and that it criminalised speech critical of religion, explicit sexual speech and much more. Corinne Grant, forceful and eloquent comedian turned lawyer-to-be, responded that “intent to cause emotional harm” had to be proven. The discussion then proceeded:

O’Neill: And who decides that?
Grant: A judge!
[Audience laughter and applause.]

For a moment I thought the audience had got O’Neill’s point: that you are asking one person to adjudicate the complex (and ultimately metaphysical) notion of “causing harm”. But when he tried to make that clear, further laughter made something clear: it was the opposite. The audience — and one shouldn’t be surprised — was undisturbed by the notion of extending the narrow realms where the state judges the content of speech (threats, extortion, incitement, some libel). Indeed, they welcomed it, presumably as an expression of progressive politics.*

Now this is curious for several reasons. The first is that, in recent days, we have been hearing how misguided judges, teachers and other authority figures have been over the issues of sexting, nude selfies, teen communications, short skirts at school, etc — and the alleged blaming of women and girls for their victimisation.

Suddenly, however, we’re going to allow such figures to determine what forms of explicit communication should and shouldn’t be legal? What if the judge is a 75-year-old member of the Melbourne Club who thinks those hussies got what was coming? We know the answer. His judgement would be criticised and a campaign mounted for his removal. The notion that such judgement would simply be accepted is absurd. The proposal is being put in bad faith.

But worse, what if there were a judge who was very keen on the idea of emotional harm, and of a wider understanding of intent? Would that start to cover very aggressive renderings of “hate” speech? What about certain types of stand-up comedy? Grant is heading towards lawyerdom, but before that she was a comedian and part of a stand-up scene where a premium was put on the willingness to transgress — to go a little bit further.

Rape jokes, Holocaust jokes, as well as obscene anti-religious jokes have been a stock-in-trade of modern stand-up for two decades or more. As has the ritual humiliation of audience members. Stand-up relies on the freedom to be not merely controversial, but to be in-your-face offensive, to go too far. Anyone flayed alive by a belligerent stand-up one night could sue, and that would be the end of that free discursive space.

That would be so whether the case was ultimately proven or not. For the penalty of such laws occurs before any judgement is issued. Vexatious forms of such suit hang over the defendant for years, drain funds and drain energy. Their aim is to make the censor “go inside”, so that you ultimately second guess your own impulse to challenge, to express, to be outrageous or genuinely on the edge. That is a fairly masterful — in every sense of the word — transition from the power of art to the power of law.

But what is most depressing, but not surprising, is the audience cheering, welcoming, the extension of judicial remit over speech. This is, a few Benjamin Button IPA kids aside, an audience of progressives, mainly youf. Their enthusiasm for an ever-encroaching state — and not one that does anything with its power like create affordable housing, or a non-onerous student debt — appears to grow with each passing year and month. There is a positive hunger to be surveilled and micro-regulated. This is a backward step — people turning themselves into the caricature elitism that the scattered and bewildered right needs as something to define itself against, and re-establish its identity. That would be some anti-achievement.

[Rundle: how radical gender theory hijacked Marxism — and why we need to get it back]

This new progressivism — hungry for political power over social interaction, disinterested in a wider economic or political discourse, obsessed with individualised identity rights as the only form of positive political change — is, as I’ve noted before (passim), an ideology, an unexamined worldview of the new (semi-)ruling class who wield their power through the culture, knowledge and policy production now at the centre of the economy. At its best, joined to a wider emancipatory politics, it’s a force for transforming the world. At its worst, on display in cultural matters, it is a politics of breathtaking arrogance, blithe to its own contradictions.

This expresses itself in the same-sex marriage debate, and this damn plebiscite. For decades the LGBT movement has correctly claimed the right to speak out, explicitly, “obscenely” — in the view of the mass culture of the day — about sex, identity, bodies etc, etc. Much of this drive to explicitness was about reclaiming speech as speech, not as harm. That was the state’s discourse.

For decades, the majority of the hundreds of books banned by successive Australian governments were about homosexuality — everything from Havelock Ellis to simple books for people with questions about their sexuality. This was the idea of speech as harm, and it helped ensure that homosexuality remained criminalised in several states long after it had been decriminalised across the world.

As metropolitan Australian culture changed, non-straight sexuality became celebrated, and, in Sydney, part of the city’s identity. The right to outrage became claimed as a cultural one, symbolised by the Mardi Gras, whose increasingly carnivalesque nature made room for whole sections of the parade that were — let’s be honest about this — pure filth. Hilarious, but filth nevertheless. The right to speak became aligned with the positive virtue of shocking transgression.

After years of giant penises on wheels coming down Oxford Street, leatherboy-watersports-themed floats, and a giant papier mache head of Fred Nile being repeatedly skullfu- outraged, it is a bit rich to switch from a libertarian ideal of speech to a “damage/act” mode and argue that the plebiscite should not go ahead because it will release hurtful and harmful speech. Yes, the plebiscite was a bullshit cunctation tactic by Tony Abbott — but that doesn’t mean that the question of whether the same-sex marriage issue warrants a mass vote or not can be pre-decided. That is where the arrogance lies.

[Rundle: Freedom Boy and Eeyore’s Q&A misadventure]

By switching the campaign away from the majority support for same-sex marriage and towards opposing the plebiscite, advocates in the gay marriage movement have dealt themselves a terrible blow, portraying themselves as in fear of the public — and appealing to the distant machinery of state that many Australians currently feel alienated from and used by. The same-sex marriage movement strategy should have been to focus on the content and say “plebiscite? Bring it. Whatever you suggest, we’ll win it.” That’s kinda civil rights 101.

Now, gay marriage’s opponents have something other than stuff about people marrying their pets to throw at their opponents — they have the notion that the same-sex marriage movement is anti-democratic. For some people who are split on the matter — commitment to traditional marriage runs deep; there’d be no nationwide same-sex marriage in the US if not for the Supreme Court — that issue would serve as a convenient lure by which to hide deeper conservative leanings from one’s own liberal self, and vote against.

How did this mess arise? The movement blinded itself to the legitimacy of its opposition. Turning “same-sex marriage” into “marriage equality” was a smart rhetorical move – unless you forgot that your opponents never believed that marriage was or should be equally available to all. The phrase became so pervasive as to give the impression that “equality” was somehow buried at the heart of marriage, waiting to be liberated after millennia of imprisonment. It’s not. The shift to same-sex marriage represents a major cultural transition, and its opponents are organising on that basis. The same-sex marriage movement has to do the same. Exasperation at the denial of what are seen as obvious and due rights is counter-productive.

The clear example of this is Ireland, where same-sex marriage was won through a referendum in a culture far more conservative and traditional than Australia’s. That took a social movement, which is something the Irish are accustomed to. Bizarrely, on Q&A, Corinne Grant cited Ireland in her argument against a plebiscite. Apparently, they’ve done the hard work for us. As Jeff Sparrow notes in The Guardian, a plebiscite won would be a social victory that would shatter much of the right’s pretence to speaking for a silent majority. A parliamentary victory would never have that legitimacy — indeed, it would be a rallying point for the right, to tell their base that they were denied a say, again.

There’s a lot worse going on at the moment — a jerry-built conservative government doing another clapped-out rendition of a Howard-style culture-economic-war, attacks on the most vulnerable, the finessing of island prison camps, etc. Why focus on such intra-left issues — if “a left” still exists? The simple argument is that emancipatory movements — for any number of groups or identities — can’t exist without a critical distance from the state, and a strong support for the idea of an autonomous public sphere. Arguing the desirability of 18C/18D in some form in a multicultural society — if that is one’s desire — can’t become a blank cheque for the state management of discourse.

[Rundle: sit back, relax, and enjoy the right tearing itself to pieces over 18C]

The desire to draw on the state to enforce right, to micromanage social life and subjectivity, is the action of an elite lacking a confidence in the force of their ideas — but an unargued assumption of their correctness. It’s particularly counter-productive when people from a creative background — playwrights, comedians — take so easily to the task of censoriousness and state control of speech. It is an invitation to hand over freedom on the promise that the state will guarantee it for you – and reach the point where you positively welcome having judges “authorising” speech. Nothing much can be achieved while this attitude persists, unexamined, unreflected upon, among people who should be challenging elites, not forming new ones.

*Of Brendan’s statement that he “loves hate speech” because it shows you how to fight racism something something, less said the better. This is Spiked contrarianism 101, designed to sharpen the contradictions by posing an obvious absurdity. Most hate speech isn’t an opinion being expressed, it’s racist abuse being yelled at someone in a shop. “Loving” that, for shock value, is just callous indifference to the conditions people have to live their lives under. Or would be, if it were seriously meant.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey