Wow, to judge by the latest episodes in the 18C/18D follies, the right really love losing on this issue. They loooooooooove losing. They lost in 2014, and they’re losing again. This pathetic beat-up based on one current gnarly court case isn’t worth an article (update, after writing it: I wrote one), but a few points are worth making:

1) If you want to know when this one was lost for the second time, it was when Colin Rubenstein published a pro 18C/18D piece in the Oz last Thursday. Rubenstein’s arguments were indistinguishable from those that would be posed by any people of colour, multicultural or indigenous group — but they would never have got such a piece in the Oz. Rubinstein is a right-wing Zionist cold warrior of decades standing, and an ally of many of the people pushing for the law to be changed. The “abolish/modify” crowd will disparage the multicultural community lobby as enemies of freedom blah blah, but they won’t say boo to Rubenstein or others. Just watch. Which affirms my point. The opposition of multicultural community bodies makes any change unlikely. The opposition of Jewish community peak bodies kills it stone dead. (Bolt has had a go at the Jewish peak bodies, but in his typical self-pitying aggrandising fashion — essentially accusing them of disloyalty to him, despite his years of support for Israel, etc.)

2) Nevertheless, misgivings about 18C/18D should remain for anyone who believes in a public sphere that is autonomous from the state. For anyone from the left that is vital. How is one to advocate civil disobedience in specific political situations if law about actions is wantonly extended to cover words? What consistent moral/political/legal case could you make to avoid the conclusion that advocating civil disobedience should not be considered conspiracy to commit? How can one defend, as the Greens did, the release of a prank press release purporting to be a bank announcement of divestment from a coal mine? If we defend an autonomous open sphere, that is a minor public nuisance case. If we lean towards the speech/act approach, it is arguably something much more serious. The position on 18C/18D shifts positions on all other such acts.

3) You can’t have your KKK and Eatock it too. Progressives who want to preserve 18C/18D also want to preserve the right of theatre groups, film festivals, etc, to pretty much do and show what they like. Such a split position strengthens the idea that the state should adjudicate speech as a matter of course, and make detailed judgements about what forms of mass offensiveness should be permitted to circulate. In Fairfax, Waleed Aly produced an elegant argument pointing out that the concept of offensive communication already exists in law, and argued that the anti-18C/18D crowd’s lack of interest in such proved that their real interest was disciplining non-whites demanding a genuine, full citizenship. Argues Aly:

“But perhaps the most relevant difference is that it isn’t confined to offending people on the grounds of race. And so it symbolises nothing of much concern to the bulk of the anti-18C crowd.”

Sadly, Aly hasn’t “nailed it” here. The point that consistent opponents of 18C/18D have made is that there is already a range of laws that proscribe harassment, offensive, menacing behaviour, up to and including assault (which has never demanded that actual physical contact be required for a prosecution). The argument is not that laws against such behaviours be abolished in toto, but that they be relied upon instead of 18C/18D. Aly’s mangling of the right-wing argument tended to codify the progressive class’ preferences as to speech and state settings.

4) There’s a lot of having it both ways about. David Marr simultaneously said that 18C “has to be changed — a little” and also that he was “against” the law. Bob Carr told the Melbourne Writers Festival on Friday that “of course” he supported 18C to the hilt, but t.e.h.Leftz — t.e.h.Leftz! — were making it hard, by, erm, defending it. Classic Carr, a creature of the NSW Right who wants to be included in the cultural left’s tribal rituals. He got caught not knowing who to suck up to at that particular moment. Why such confusion? Because left-liberals still imagine that they’re insurgents, challenging censorship, when they’re now the wielders of state cultural power. They’re essentially storming their own barricades.

5) The “cultural left” case — that all speech is an act — is asinine. If all speech is an act, then there is no speech. But the classical liberal case that there is a hard and fast distinction between speech and act is equally absurd and superseded. Both the IPA crowd and material-libertarian groups like Spiked retreat to John Stuart Mill’s On Liberty essay as a bedrock on which to stage an assault on 18C/18D. But Mill’s 19th-century approach has two defects: it predates the notion of “speech acts” (as defined by the philosopher J.L. Austin in the mid-20th century, and refined by John Searle and others since), and it constructs a fictional civil subject, a person, who is essentially a point particle, a being without content, memory, context, upbringing, etc — a selfhood with materiality.

6) This is a vital consideration, because the valid defence of 18C/18D is not to restrict propositional, argumentative speech no matter how nasty and in bad faith. The validity of 18C/18D arises when speech acts are considered. Austin described speech acts as those that don’t describe or argue something, but do something. “I now pronounce you man and wife” doesn’t describe a marriage; it is the marriage, the thing itself. The same is true of all sorts of utterances: oaths, military orders, promises, commitments, etc. It’s also true of a class of statements that have both “discursive” and act properties. The first time you say “I love you” to someone — is it a description of an internal state or an act, a form of attestation, which changes the material social relationship? It is substantially the latter.

7) “I love you” is a speech act; “I hate you” is perhaps not. But “fuck off nigger” certainly is, especially if you get it all day and every day, or did in your childhood. It is especially so if we accept — as we all do, in every aspect of our social lives — that people are not tabulae rasae, but come to any encounter with histories, experiences and contexts, which dictate the meaning of words. David Leyonhjelm’s absurd argument that one can “choose” whether or not to be offended, or wounded, in any and all cases, is the psychological fiction that is required for classical liberalism to be a consistent philosophy. It was exposed instantly by The Chaser when they confronted him with some slogan-bearing “Wicked Campers”, making derisive reference to the man so white he looks like a six-foot, standing, transparent used condom; “are you familiar with the term ‘fuck off’?” he said to the crew confronting him. Sounded like a reaction without much choice about it. The meaning and impact of language is intersubjective and material, determined by the history and context of the words themselves and the relation to them; the only people who have an individual relationship to language are psychotics.

8) Our culture is stuffed wall-to-wall with the belief that subjectivity is material. The same people who advance simple cases against 18C/18D bill and coo over Beyondblue and the Black Dog Institute, both of which not unreasonably advance the idea that people subjected to years of verbal and emotional abuse as children, or adults, will be predisposed to depression, and that repetition of such will have material effects on someone; hence abuse is an act. The IPA takes its secret cash from major corporations that spend vastly more on advertising that explicitly rejects the idea of “the liberal subject”, and instead presumes that people do not consciously and reflectively make most of the choices in their life. The people who supply that advertising spend millions on research to find out what works and doesn’t work — i.e. what the unfree material subjectivity of targeted consumer groups consists of. With the profits the corporations make using this advertising, they kick a bit to the IPA, so Sprog Paterson and Freedom Boy can make speeches about the “sovereignty of the individual”.

9) If the whole of a consumer society runs on the idea that subjectivity is material — i.e. real, not something that can be changed by a simple act of will or thought — then verbal abuse must be considered a material act. Racist abuse must be considered a particularly striking case of that. Racist abuse directed against the “global black person” — African-Americans, the global African diaspora, Australasian and Oceanic indigenous people — must be considered the most striking of all. The reasons for that need another article, but we can establish it by simply recalling my earlier use of the phrase “fuck of nigger”. Admit it, it’s disconcerting to see the word in print. Even if you’re not black, you can feel it. The “fuck off” — which would have been unprintable, by and large, before about 1985? Not at all. We know that there is a class of speech acts in a settler-capitalist society, which are social-psychological blunt instruments.

10) This is one reason why, to their surprise, the right are finding no great groundswell to change 18C/18D — save among those saddos who takes Andrew Bolt’s book on holiday and photograph it in front of the Coliseum. We live at the centre of a culture/image economy/society which, 24/7, pokes, prods, berates, deceives and manipulates us, demands we reply, obliges us to continually make and remake a public image. (Yes, 24/7 — do you imagine that you are the author of your own dreams?) The 18C/18D crowd haven’t cottoned onto that new reality — or the implication of it, that people regard structures that give respite from that onslaught, as a condition of freedom.

11) Consequently people are willing to support laws that guarantee smooth recourse to legal action to act against such public assaults. In an era of teen suicides from Facebook shamings, a case such as Eatock vs Bolt — which laid bare the absolute indifference Bolt displayed to factual accuracy concerning people he was naming — served to emphasise to many the need for straightforward recourse. Bolt’s seemingly personal animus to mixed-race people, and the netherworld of European reactionary thinking that summoned up, probably did more to cement the law in than any positive campaign for it could have done. Hence the campaign has switched to the QUT case. Those who are being stampeded to condemn the duration and process of this case, should remind themselves that our information on it is coming from The Australian. Its central editorial group simply can’t be trusted to accurately or fairly report such matters, so we don’t know what’s been left out.

12) The principle casualty of this new push to change 18C/18D — abolition has long since gone by the board — is the Liberal Party. As the right in the Senate thumb their nose at the party leadership, the leadership lose their numbers in the House. The student politics-as-real-politics era is reaching its apogee — when the national Parliament is as disorganised/confused/bored-want-weekend-to-start/stoned as some rural tech college SRC taken over by the right for a season.

13) What’s the takeaway from this? Well, what’s happening at the moment is that, in Australia, this new global condition — a surfeit of information, comin atcha all the time — is combining with an older Australian commitment to (or ease with) communalist limits on individual action. The culture that many Australians want is one where a plebiscite doesn’t take place because of the “harm” it might “cause”, and a wider range of things can be ruled unsayable by the state. Not a particular cultural setting I’m particularly fond of, but at least I’m aware of it. The right seems unaware that they are reinforcing it with every simplistic “freedom!” cry they make. The first charge at 18C/18D helped put Tony Abbott on the road to oblivion. Looks like this second go might put Bill Shorten on the road to the Lodge.

Peter Fray

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