Error Theory

Andrew Bolt has been blogging for the past week about the totalitarian tendencies in the just released "Media Inquiry" commissioned by Australia's Labor government. This "Finkelstein Report" advocates unlimited regulation of virtually all published and broadcast speech in Australia.

The actual proposal can be scanned in a few minutes (pages 290-300 here). It would set up a 21 member News Media Council, charged to enforce at least some level of oversight:

While the setting of standards should be left to the News Media Council, they should incorporate certain minimum standards, such as fairness and accuracy [§ 11.52, p. 291].

But there is no corresponding limit on how much the Council is allowed to regulate. Just the opposite, the Report explicitly declares that protecting freedom of speech is not part of the Council's mission! §11.55, p. 292:

The News Media Council requires clearly defined functions. It is not recommended that one of them be the promotion of free speech. There are ample bodies and persons in the community who do that more than adequately.

Really? In a country that has no constitutional or statutory protection for speech, how are non-governmental "bodies and persons in the community" more than adequate to protect speech from a governmental body that is endowed with unlimited power to regulate speech?

The report explicitly calls for opinion to be regulated along with news (§11.64, p. 294) , and while low-readership blogs would possibly be exempted, Bolt notes that the suggested threshold for regulation would cover any blog that averaged even one reader a day, and even that would be at the complete discretion of the Council (§11.59, p. 293).

In addition to making whatever rules they want, the Media Council will also sit in judgment (§11.70, p. 296):

If not resolved informally, complaints should be dealt with by a complaints panel consisting of one, three or, only in exceptional cases, five members of the News Media Council.

Envisioned remedies (§ 11.74, p. 297-8) include forced corrections, forced withdrawals, and forced publication on the offender's website of contrary views.


Crime and punishment

Elsewhere the Media Inquiry makes perfectly clear which views are to be corrected: global warming skepticism and criticism of the Labor government.

Skeptics could even be forced to take their own views down and post contrary views in their place. Just impose all the contemplated remedies at once, and why not? There are no stated limits. There are no limits on scope: that political speech is to be granted wide play, or even whether challengers for office must submit to oversight on their claims about the incumbent regime. Neither are any procedural limits imposed. The Council can make up whatever rules it wants. And if people refuse?

Failures to comply (§11.77, p. 298) are to be turned over to existing courts (civil or criminal not specified) which would be called upon to punish non-compliance as contempt of court (i.e. running fines or jail until compliance is forthcoming). In other words, unlimited punishment.

In the name of efficiency there are to be no "internal" or "external" appeals (§278, p. 299), but judges deciding on contempt charges would be allowed to review Council rulings if they feel that their dockets are not full enough already (§11.79, p. 299).


Orwellian "benefits"

§11.86 (p. 300) lists the proclaimed benefits that justify this system of unlimited regulation. Compared to the barbaric system of liberty, where people compete to offer the most convincing arguments, having the government be the arbiter of truth will:

[enable] the public to have confidence that journalistic standards will be upheld and that complaints will be resolved without fear or favour.

Yes, government is well known to never play favorites, and Solomonic power is famous for its even handed wisdom: "Cut the baby in half!" Liberty is way overrated.

Solomon did not actually cut the baby but we can be certain that this 21 member Council, all appointed by a single "independent committee" (like the authors of the Finkelstein report!), would be an abattoir.

"Independent" the report clarifies (§11.46, p. 291), means "Independent from government" (emphasis added), and yet it is to have the power of government. In other words, it is to have unaccountable power, and this independence from accountability is to be conferred upon a well known permanent Labor constituency, Universities Australia, which would get to appoint a majority of the "independent committee."

Thus the entire enterprise would have the great virtue (from the Labor point of view) that unlike the sitting government, the voters cannot "throw the bums out." Here the appointing committee and the appointed Council will violate the fundamental principle of republicanism as articulated by Alexander Hamilton, who appealed at the New York Convention that:

The true principle of a republic is, that the people should choose whom they please to govern them.

Too bad the Australian Constitution also lacks a republican guarantee.

The final punctuation mark on Finkelstein's plan, the last proclaimed benefit of allowing dissidents to be swallowed whole by the Ministry of Truth, is timeless virtue:

Enhancing the public flow of information and the exchange of views.

"Was is peace," and "we've always been at war with Eastasia." As Brendan O'Neill writes in The Australian:

...we’re witnessing the unravelling of many of the values and virtues of the modern era.

All in a knee-jerk snit over the fact that the left-dominated media does not yet have a complete publishing monopoly. Dissenting voices can still be heard, and Finkelstein finds that very disturbing.


Negative liberty: non-existent in Australia and in peril in America

To an American, what is most striking about the Australian plan is the complete absence of any statement of negative rights, or freedom from restrictions on speech. Our entire concept of free speech is framed in negative terms: "Congress shall make no law... abridging the freedom of speech." The Australians have no constitutional protection for speech, but it is still astounding to see how readily the left would overthrow this pillar of Western liberty in exchange for partisan advantage.

The same totalitarian ambitions are at work in America too. They face greater legal obstacles here, but key actors are powerfully placed. Obama's "regulatory czar" Cass Sunstein wants to use the system of "notice and takedown" from copyright law to shut down "conspiracy theories." As an example, he wants to suppress claims that:

the theory of global warming is a deliberate fraud.

If SOPA had passed then all of the necessary machinery would have been in place, ready to expand from copyright infringement to the suppression of conspiracy theories at the drop of a one-line rider on any bill. At that point our freedom to speak our minds would lie in the hands of Sunstein booster Elena Kagan (who brought Sunstein to Harvard, calling him "the preeminent legal scholar of our time"); the racist Sonya Sotomayor (a long-time member of La Raza, or "the race"); and a borderline Court-majority of similar un-worthies.

We dodged a bullet and it looks like Australia will too, given how well the Finkelstein report is being received down under, but dodging bullets is a precarious business. If we don't somehow manage to effect a fundamental retrenchment of liberty it won't be long before we lose it.

Crossposted at WUWT.