Assoc. Professor Hirst Responds

ASSOCIATE Professor Martin Hirst has responded to the post citing his opinion that America's First Amendment is an anachronism.His observations can be found in the comments thread of the relevant post, but as they may inspire Billabong visitors to share their own thoughts, they are also pasted below.

Feel free to comment -- politely, of course -- and let us thank Professor Hirst for demonstrating what free speech is all about. It's a nice little system, the civilised exchange of ideas. Pity if anything were to happen to it.

ethical martini said...

    sorry, I am semi-literate and I think I know the difference between anachronism and irrelevant, but I'm happy for you to enlighten me in your special way. 'Anachronism' something that is of a previous time that may not be quite so relevant (so there is perhaps a link?) in the modern contemporary world.

In relation to the first amendment I think the fact that it is always being tested in the courts shows that it is contested and shows that it may well display the characteristics of an anachronism - that is, it it showing its age. Further, societies move on, this is not America of the revolutionary years anymore. When the 1st amendment was drafted it was a frontier country, young and flexing its muscles. America today is a very different place full of decay and exercising imperial power across the world. the first amendment has not saved it from that malaise.

Our values have changed and so have our ideas. I also note that the 1st amendment is not absolute, it bans certain things too: The Supreme Court has often defined certain speech, also known as “at risk speech,” as being unprotected by the First Amendment:

* Burning draft cards to protest draft — prohibited because of superior governmental interest.
* Words likely to incite imminent violence, termed “fighting words.”
* Words immediately jeopardizing national security.
* Newspaper publishing false and defamatory material — libel.

We may today in our enlightened way agree or disagree with some of these bans. I for one don't agree with the ban on burning draft cards as I do not support the idea of a higher national / state interest in such matters of political dissent. I do however support the ban on 'fighting speech' and this is the essence of the Racial Discrimination Act, for example, in Australia.

So, in the context of the tweet that this blog found so outrageous (you can read above) my comment that the 1st amendment is anachronistic should not be read as an attack on the right of free speech. My comments at the media inquiry on Tuesday (mainly answers to questions from the inquiry chair that I did not know were coming as I was there to talk about something entirely different) will be published in full in the next 48 hours, read them for yourselves and then judge me on that.

I have never met the 'professor' nor he me. But he launched an attack on my person without provocation and then reacted in a very snippy way when I responded in a light-hearted fashion. It seems he is infringing my freedom of expression to denounce me and my reputation in such a manner. It was, IMHO, troll-like behaviour.

I have no problem with a conservative viewpoint being put, but you guys get very personal very quickly and are at the same time provocative and defensive when people like me try to stick up for themselves.

I spoke at the media inquiry about the need for civilised discourse - that is engaging with ideas, not slandering your opponents, - try it. Take a deep breath and exhale, close your eyes, relax and repeat after me - a trotskyist is not a stalnist; trots do not eat babies, permanent revolution doesn't mean gulags we're all individuals.

BTW: I can quote orwell too.

NOTE: In pasting Assoc. Prof Hirst's comment a technical glitch stripped all the paragraphs. The text has seen been re-set. If the breaks above are not those of the original comment, be assured no malice directed the "enter" key.

AND A RELUCTANT UPDATE: It is not good manners to invade the stage, push the speaker from the microphone and disagree with his or her points while offering no opportunity of immediate reply, so an hour's reflection and two cups of coffee have been invested in considering whether or not to address Associate Professor Hirst's four key points. This post represents his turn to spout off, and commenting on his comment might strike some as a a taking unfair advantage of the "publish" button. Whatever Hirst might say, the opportunity will always be there to enjoy the last word.

That said, and after much reflection, readers' appreciation of his four asterisked points would benefit from a little background on relevant US Supreme Court rulings, which can be found here. As the author notes, the court's logic has been all over the block, although a general retreat from the "fighting words" ruling is evident

The four points and where they run aground on reality:

* Burning draft cards to protest draft — prohibited because of superior governmental interest.
The court did not examine free speech, (dubiously) rejecting the notion that it is relevant to the burning of draft cards. It did, however, safeguard Americans' right to burn their flag.
 
* Words likely to incite imminent violence, termed “fighting words.”
This ruling sprang from the arrest of a street-corner orator and his refusal to leave the soapbox when, in the officer's opinion, further remarks were likely to inspire a riot. By contrast, SCOTUS also stood by a Klansman's right to burn his cross, in part because that act was not an incitement to "imminent" violence and, perhaps more importantly, because advocating violence in theory is protected. Relevance to the Bolt decision: Zip
 
* Words immediately jeopardizing national security.
The key word is "immediately". See the Pentagon Papers, whose publication the court refused to sanction

* Newspaper publishing false and defamatory material — libel.
US libel laws defend news organisations' right to get it wrong so long as those mistakes are not the fruit of malice. As a result, it is virtually impossible in the US for public figures and officials to win damages. Again to mention the Bolt case, Judge Mordy's ruling is inconceivable in the context of New York Times v. Sullivan


Associate Professor Hirst is right, however, to cite US standards, even if he fails to grasp their meaning. In regard to free speech, Australia would be a better place, and its democracy healthier, were we to import US laws and attitudes as a job lot.