Free speech: the right to say what we want you to say

Opinion By Anthony Cox. 

Also published on the ABC's The Drum

Larry Pickering Cartoon

To Censor: verb; to suppress free speech; to limit opinion; to Finkelstein news.

Raymond Finkelstein QC's report on the press in Australia has a long pedigree. In the case of the 'debate' on man-made global warming (AGW) the official version has always been based on authority. That authority has been generated by the idea of consensus, that is, a majority of climate scientists accept AGW.

It is a funny notion. It is underpinned by the peer review process. The peer review system works like this: you are a scientist and you submit a paper on AGW which is reviewed by your peers. But if all your peers accept that AGW is real aren't they all going to reject any view which diverges from the consensus?

This seems to be the case with great acrimony attaching to any non-consensus view. Spencer and Braswell found this out when their 2011 paper showing climate sensitivity was much less than the computer models predicted provoked a resignation by the editor of the journal which published their paper. This act of martyrdom was favourably received by such AGW stalwarts as Peter Gleick who subsequently experienced his own act of professional immolation. The fact that Spencer and Braswell based their paper on observations was overlooked by most of the critics.

The point is if experts like Spencer and Braswell are shown the door by the consensus what chance do average citizens have in expressing their doubts. According to prominent intellectuals like Robert Manne they shouldn't have doubts. Manne is blunt; he says about these citizens:
citizens cannot evaluate independently the scientific arguments and rationally choose to believe the conclusions of a handful of scientific pseudo-sceptics rather than those of the tens of thousands of the scientists researching and publishing in this field,
At least Manne accepts democracy. His fellow intellectual Clive Hamilton infamously doesn't and also thinks news outlets which don't share the consensus view should not have the pleasure of his company. But is one thing for Clive to take his ball and go home; the site he has abandoned can continue to express its anti-Clive viewpoint. The question is will it be able to do so if Finkelstein's recommendations are taken up?

Finkelstein has recommended the setting up of a News Media Council (NMC), "to set journalistic standards for the news media". From the outset it seems a bureaucratic heaven since Finkelstein concedes:
"Those standards will likely be substantially the same as those that presently apply and which all profess to embrace."
What bureaucracy wouldn't like to be publically funded to essentially do nothing?
This is especially germane since Finkelstein shares Manne's view of the (in)capacity of the citizenry to properly understand the news [2.25]:
There is real doubt as to whether these capacities are present for all, or even most, citizens.
This is the primary justification of the censor: that the censored lack the capacity to properly understand and could be led to believe "what fits their irrational needs". It is the ultimate declaration of superiority because the censor can read, listen to or see the material and not be affected and can make the decision about what the more irrational and inferior can read, listen to or see. Finkelstein has conformed to this assumption of superiority by the censor as shown by his suggestions for who would appoint the NMC, senior academics (11.46) and who would be the chair and head of the NMC, a judge or lawyer (11.50).
The idea that citizens need to be controlled in this way is repugnant and fundamentally anti-democratic. Equality of exposure to ideas and transparency of information are the pillars of any free society; there exist only few and constrained exceptions to this paradigm such as in defamation, copyright and security issues. Finkelstein has extended Manne's objection to the citizenry having an opinion about AGW 'science' to information generally and his disclaimer at 2.28 does not mitigate that.
Clearly the NMC which Finkelstein envisages will not be a bureaucracy doing nothing. This is especially so since the impetus for the Finkelstein enquiry came from Bob Brown. Brown's influence on Finkelstein's report is plainly shown in section 4 where Finkelstein uses the negative treatment of the issue of AGW as an example of 'bias' in the media particularly by the Murdoch press.

Leading up to the Finkelstein enquiry Brown had spoken of the media's "corrosive influence" and raised the usual class and wealth distinctions.

But surely the wealth aspect does not apply to the many online 'news' sources. Finkelstein has stated that any NMC will cover "online" 'news'. Most of these 'news' platforms online are bread and butter, small operations. Finkelstein obviously thinks the size and readership [sic] of these online 'news' outlets is still sufficiently influential so as to need to bring them under the NMC.
Finkelstein's criteria for NMC online involvement is:
If a publisher distributes more than 3,000 copies of print per issue or a news internet site has a minimum of 15,000 hits per annum it should be subject to the jurisdiction of the News Media Council, but not otherwise.
The assumption here seems to be that 15,000 hits PA is equivalent to 3,000 copies. But as David Stockwell notes the difference is actually between 150 readers for the blog and 15,000 readers for the print news source.

Theoretically Finkelstein's criteria could capture some poor lost soul who blogs and then is the only one who reads his cri de couer. This is the equivalent of saying those citizens who used to stand on street corners in the pre-online era, with signs saying "repent, the end is nigh" should have been subject to government criteria regarding their right of opinion. Apart from anything else it would have been a retrograde step to have done so because if they had been suppressed their offspring, the climate scientist, may never have evolved.

This is indeed the fundamental flaw in Finkelstein's proposal: it does not distinguish between opinion, news and fact. It is an understandable flaw because increasingly the 'news' in the modern era is filtered through the opinions of personalities who masquerade as objective news reporters and journalists. This is especially so in the context of the AGW 'debate', on online sites with those who advocate AGW being, mostly, clearly demarcated from those who criticise it.

In this 'debate' the distinction is between opinions and it is a fascinating conflict. Finkelstein has emphasised that "the search for truth" should be the lynch-pin of freedom of expression. The debate about AGW demonstrates the continuum of truth in a democratic society: at one end there is the group or consensus truth and at the other, the individual truth. The mechanisms for establishing truth in a democracy are science, legal process and ultimately the democratic process.

The consensus truth relies on authority to justify its truth while the individual truth must be sustained with ability to persuade. Each of the mechanisms for establishing truth in a democracy are based on individual truth: in science you can't elect truth or declare it by majority; at law all litigation is between individuals, even class actions involve individuals with a common complaint and the democratic process is an individual rights based process.

Finkelstein's review, therefore, should be scrutinised from this vantage point: to the extent it compromises the individual rights based mechanisms of a democracy it should be rejected because by doing so all Finkelstein is promulgating is censorship.

Anthony Cox is a lawyer and secretary of The No Carbon Tax Climate Sceptics.


  1. 15000 hits per annum gives pop star status frowned on by the lefts regulators while under 15000 makes you a no body, Go figure nanny state regulatory sense, George Orwell would be a no body if alive today under the lefts mandates.


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