[1] For approving treatments of the Act, see McNamara, L, "The Merits of Racial Hatred Laws: Beyond Free Speech" (1995) 4 Griffith L Rev 29; McNamara, L & Solomin, T, "The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment" (1996) 18, Adel L Rev 259. The underlying issues are examined in the Symposium in (1994),1 Aust J of Human Rights 140-353.
[2] See R v Langer [1972] VR 973. For a recent sampling of what might, very loosely, be termed Langer's 1990s version of "Maoism", see his "The revolution lives on, long after Mao" The Age, 24 December 1993.
[3] Langer v Commonwealth (1996) 186 CLR 302; Australian Electoral Commission v Langer [1996] 1 V.R. 576 (injunction granted); Australian Electoral Commission v Langer (unreported, Beach J, Supreme Court of Victoria, 14 February 1996)(Langer imprisoned until 30 April 1996 for contempt of court and ordered to pay costs on a solicitor-client basis); Langer v Australian Electoral Commission (No 1) (1996) 59 FCR 450; Langer v Australian Electoral Commission (No 2) (1996) 59 FCR 463; Walker, K & Dunne, K, "Mr Langer is Not Entitled to be an Agitator" (1996) 20 MULR 909; Twomey, A, "Free to Choose or Compelled to Lie?-The Rights of Voters after Langer v Commonwealth" (1996) 24 Fed L Rev 201; see also Muldowney v South Australia (1996) 186 CLR 352.
[4] Prime Minister Howard's "pall of censorship" speech was given to the Queensland Branch of the Liberal Party of Australia in September 1996: for contrasting reactions to it, see Lane, T, "Keeping a civil tongue", The Age, 26 September 1996; Reynolds, H, "Unrestrained and dangerous", The Australian 25 September 1996; see also the debate on racial tolerance: Parl Deb (House of Reps), 30 October 1996, 6156-6181.
[5] Fasold v Roberts (1997) 70 FCR 489; affirmed on appeal, Plimer v Roberts (1997) 150 ALR 235; special leave to appeal to the High Court refused, 19 June 1998.
[6] NSW, Parl Deb, 11 November 1997, 1403-1417, 1444-1447; Arena v Nader (1997) 42 NSWLR 427; special leave to appeal to the High Court refused, 15 October 1997; Craven, G, "A dangerous privilege" Herald Sun,
[6] November 1996; Campbell, E, "Investigating the Truth of Statements Made in Parliament: The Australian Experience" [1998] Public Law 125.
[7] Parl Deb (House of Reps), 10 September 1996, 3860-3863; McNamara, L, "The Things You Need: Racial Hatred, Pauline Hanson and the Limits of the Law" (1998) 2 Southern Cross U L Rev 92.
[8] The Age, 29 September 1998; Hanson v Australian Broadcasting Corporation (unreported, Court of Appeal (Qld), 29 August 1998), special leave to appeal to the High Court refused, 24 June 1999.
[9] Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1997) 145 ALR 464 (Merkel J); affirmed on appeal (1998) 82 FCR 225. Special leave to appeal to the High Court was refused on 11 December 1998; see Kumar, B, "Brown v The Classification Review Board: Robin Hood or Rebel Without a Cause?" (1999) 21 Syd L Rev 294. It was apparently suggested by the Attorney-General's Department that the inclusion of the complete text of the offending article in the judgment of Heerey J in the Full Federal Court was itself contrary to law: The Age, 27 March 1998.
[10] Irving v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 423; affirmed on appeal, (1996) 68 FCR 422.
[11] The Age, 17 December 1997.
[12] The Age, 14 July 1997; Re Minister for Immigration and Multicultural Affairs; ex parte Ervin (Transcript of hearing, High Court of Australia, B29/1997, Brennan CJ, 10, 11 July 1997).
[13] The Age, 10 November 1998.
[14] Pell v The Council of Trustees of the National Gallery of Victoria [1998] 2 VR 391. The Serrano exhibition opened, but was closed two days later as a result of repeated threats to the National Gallery and two damaging physical attacks on the controversial image; Harris, B, "Case Note", (1998) 22 MULR 217; for the later decision of the Victorian Civil and Administrative Tribunal striking out a complaint under the Equal Opportunity Act 1995, see Stokes and Others v National Gallery of Victoria (unreported, 6 November 1998); see also NSW, Law Reform Commission, Report No 74, Blasphemy (1994); Unsworth, C, "Blasphemy, Cultural Divergence and Legal Relativism" (1995) 58 Mod L Rev 658; Adler, A A, "What's Left: Hate Speech, Pornography and the Problem for Artistic Expression" (1996) 84 Calif L Rev 1499; For the US origins of the dispute about Piss Christ, see Congressional Record, 9788-9789, 10323-10325, 14431-14433 (1989); National Endowment for the Arts v Finley 141 L Ed 2d, 500 (1998).
[15] R v Grassby (1988)
[15] NSWLR 109; R v Hayes (unreported, County Court of Victoria, 20 January 1998); The Age, 21 January 1998; The Australian, 21 January 1998; see also Waterhouse v Gilmore (1988) 12 NSWLR 270.
[16] Levy v Victoria (1997) 189 CLR 579; Muldowney v South Australia (1996) 186 CLR 352; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; see also Nulyarimma v Thompson (1999) 165 ALR 621 at paras 198, 199 (claim that formulation of government policy and introduction and support of Bill for amendment of Native Title Act amounted to genocide).
[17] Australia, Law Reform Commission, Censorship Procedure, Report No 55 (1991); Williams, D, "From Censorship to Classification", Address, Murdoch University, 31 October 1997: www.murdoch.edu.au/elaw/issues/v4n4/will44l.html.
[18] Dillon, K & Williams, C Brought to Book (1993); Marr, D, "The Moral Warriors: How They Stop People Reading and Watching What They Want" The Sydney Morning Herald, 5 April 1997.
[19] Bryl and Kovacevic v Nowra and Melbourne Theatre Company [1999] HREOCA 11 (21 June 1999).
[20] The Sydney Morning Herald, 15 May 1997; Herald Sun, 26 December 1997; The Sydney Morning Herald, 4 December 1998; Herald Sun, 6 December 1998, 13 December 1998.
[21] See e.g. on the use of the expletive "fuck": Hortin v Rowbottom (1993) 61 SASR 313; Re E (A Child) (1994) 76 A Crim R 343; 13 WAR 1; Heilpern, H, "Judgment: Police v Shannon Thomas Dunn" (1999) 24 Alt L J 238. For different approaches, see Khan v Bazeley (1986) 40 SASR 481 and Conners v Craigie (1994) 76 A Crim R 502; see also Pell v The Council of Trustees of the National Gallery of Victoria [1998] 2 VR 391.
[22] Sunday Herald Sun, 11 May 1998, 18 May 1998; The Sydney Morning Herald, 4 December 1998.
[23] The Age, 13 November 1999.
[24] Dutton, G & Harris, M, Australia's Censorship Crisis (Melbourne, 1970); Coleman, P, Obscenity, Blasphemy and Sedition: 100 Years of Censorship in Australia (Rev Ed., Sydney, 1974).
[25] This was a bipartisan development which owes much to the work of successive Commonwealth Ministers for Customs, Mr D Chipp, MP and Senator L K Murphy, QC: see e.g. Parl Deb (House of Reps), 11 June, 1970, 3372-3382; Parl Deb (Senate), 8 March 1973, 266; see also Preamble, National Classifications Code reproduced in Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1997) 145 ALR 464.
[26] Edwards, P A, Nation at War: Australian Politics, Society and Diplomacy during the Vietnam War 1965-1975 (1997); Samuels v Hall [1969] SASR 296; O'Hair v Killian (1971) 1 SASR 1; Sullivan v Hamel-Green [1970] VR 156; R v Langer [1972] VR 973; see also Commonwealth Parliament, Joint Standing Committee on the National Capital and External Territories, Report, A Right to Protest (1997).
[27] For a range of treatments, see Hughes, R, Culture of Complaint: The Fraying of America (1993); Windschuttle, W, The Killing of History (1994); Goldsmith, M, Political Incorrectness: Defying the Thought Police (1996); Coleman, P (Ed), Double Take: Six Incorrect Essays (1996); Wark, McK, "Freedom of Speech a Myth", The Australian, 19 February 1997; Wark, McK, The Virtual Republic: Australia's Culture Wars of the 1990s (1997); Adams, P (Ed), The Retreat from Tolerance (1997); Sheehan, P, Among the Barbarians (1998).
[28] Meyer, C, "Sex, Sin and Women's Liberation: Against Porn-Suppression" (1994) 72 Texas L Rev 1097; MacKinnon, C A, "Pornography Left and Right" (1995) 30 Harv Civ Rights-Civ Lib L Rev 143; Strossen, N, In Defense of Pornography: Free Speech and the Fight for Women's Rights (New York, 1995).
[29] For example, they could be expected to be strongly opposed on the issue of abortion and, probably, on issues affecting prostitution.
[30] See e.g. Australia, Law Reform Commission, Multiculturalism and the Law Report No 57, (1992); Equality Before the Law: Part 1, Justice for Women; Part II, Women's Equality, Report No 69, (1994).
[31] The term "speech-related conduct" is used here to include marching, demonstrating, parading, protesting, picketing, wearing particular clothing (including uniforms), displaying signs, badges, insignia, using placards, gesturing, distributing literature, using sound amplification equipment, and more deliberately provocative activities such as book burning, flag desecration, and cross-burning.
[32] Davidson, A, From Subject to Citizen: Australian Citizenship in the Twentieth Century (1997); Stokes, G (Ed), The Politics of Identity in Australia (1997).
[33] For an early manifestation of such views, see Marcuse, H, "Repressive Tolerance" in Connerton, P (Ed), Critical Sociology (1976), 301.
[34] It is not suggested here that postmodernism is a single theory. Fraser uses the term "postmodern" without explaining his version of the term and without explicitly adverting to the various schools of postmodern and related social theory. Some indication of the sources of inspiration for Fraser comes from his list of references which contains works by Jean Baudrillard, Jaques Derrida, Paul de Man, Stanley Fish, and Jean-Francois Lyotard. The volume of the literature on postmodernism is staggering. For a very small (and deliberately diverse) sampling of a wide range of recent treatments, see e.g. Harvey, D, The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change (1990); Milner, A, Contemporary Cultural Theory: An Introduction (1991); Alexander, J C, Fin de Siecle Theory: Relativism, Reduction and the Problem of Reason (London, 1993); Norris, C, Against Relativism (1997); Eagleton, T, The Illusions of Postmodernism (1996); Lemert, C, Postmodernism is not What You Think (1997); Hughes, R, "Jean Baudrillard: America" in Nothing if Not Critical: Selected Essays on Art and Artists (1990); Readings, W The University in Ruins (1997); Anderson, P, The Origins of Postmodernity (1998); Ninkovich, F, "No Post-Mortem for Postmodernism Please" (1998) 22 Diplomatic History 451; Searle, J, Mind, Language and Society: Philosophy in the Real World (New York, 1998).
[35] Derrida, J, Of Grammatology (Baltimore, 1976), 158.
[36] For two contrasting treatments, see MacKinnon, C A, Only Words (1993); Walker, S, Hate Speech: The History of an American Controversy (1994): see also Index on Censorship, January 1998.
[37] Anti-Discrimination Act 1977 (NSW), ss 20B-20C, 38R-38T, 49ZS-49ZTA, 49ZXA-49ZXC; Anti-Discrimination Act 1991 (QLD), s 126; White, B, "The Case for Criminal and Civil Sanctions in Queensland's Racial Vilification Legislation" (1997) 13 QUTLJ 235; Racial Vilification Act 1996 (SA); Wrongs Act 1936 (SA), s 37; Anti-Discrimination Act 1998 (TAS), s 19; Criminal Code (WA), ss 76-80; Discrimination Act 1991 (ACT), 65-66.
[38] Shaw v Wolf (1998) 163 ALR 205 (on the meaning of the statutory term "Aboriginal person"); See (Justice) Merkel, R, "The Right to Difference" (1998) 72 ALJ 939; (Justice) Abella, R S, "Human Rights and the Judicial Role", Lecture given to the Australian Institute of Judicial Administration, Melbourne, Vic, 23 October 1998.
[39] National Agenda for a Multicultural Australia (1989); National Multicultural Advisory Council, Issues Paper, Multicultural Australia: The Way Forward (December 1997); Report, Australian Multiculturalism for a New Century: Towards Inclusiveness (May 1999); the Australian Government's response to the 1999 report is to be found in A New Agenda for Multicultural Australia (December 1999). The texts are available at http://www.immi.gov.au/multicultural/index.html
[40] There is not space here to explore (nor is such an exploration part of the argument) the full range of meanings assigned to the term "assimilation". It is enough to say that nowadays many people would probably accept the following description, but that some critics of multiculturalism would vehemently object to the inclusion of the words in italics "The policy of assimilation spans the period up to the mid 1960s and was based on a belief in the benefits of homogeneity and a vision of Australia as a racially pure white nation. The policy effectively excluded non-European immigration." (italics added), Report, Australian Multiculturalism for a New Century: Towards Inclusiveness (1999) (sect 1.2).
[41] For an example of the tendency to regard criticism of multiculturalism as no more than advocacy of "thinly veiled policies of bigotry and division", see Report, Australian Multiculturalism for a New Century: Towards Inclusiveness (1999)(Introduction and Summary).
[42] The generic term "political correctness" is used to denote an approach to the discussion of public issues, which is censorious of "unpopular" or "unorthodox" or "offensive" ideas. It is both a left-wing and right-wing political phenomenon.
[43] Sunstein, C R, Democracy and the Problems of Free Speech (1993); Fiss, O, The Irony of Free Speech (1996); Fiss, O, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (1996); Collins, R K L and Skover, D M, The Death of Discourse, (1996). See Wark, op cit, n 25, 175; Paton, E, "Respecting Freedom of Speech" (1995) 15 Oxford J of Legal Studies 397.
[44] McNamara & Solomin, op cit, n 1 at 260. A more ominous development is the emergence of the idea that prejudice such as that gathered under the rubric of "homophobia" is a disorder warranting psychiatric intervention: see the controversy generated by bigoted remarks attributed to John Rocker, a member of the Atlanta Braves baseball team, The New York Times, 9 and 13 January 2000, the remarks of Mr Justice Michael Kirby in his lecture, "Psychiatry, Psychology, Law and Homosexuality: Uncomfortable Bedfellows", 27 April 2000 (http://www.hcourt.gov.au/) and the response by Professor P J V Beaumont, The Australian, 4 May 2000.
[45] Hobsbawm, E, "Identity Politics and the Left" New Left Review, No 217, May/June 1996, 38; Epstein, B, "Postmodernism and the Left", New Politics, Vol 6, No 2 (new series), Winter 1997.
[46] In Tasmania, s 19 of the Anti-Discrimination Act 1998 prohibits public acts which incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of the religious belief or affiliation or religious activity of the person or any member of the group. Throughout recorded history some religious ideas, beliefs, affiliations and activities have, understandably, produced hatred towards, contempt for and/or ridicule of those ideas, beliefs, affiliations and activities. Moreover, we are all free to denounce the very concept of religion. The individual adherents of religious ideas (or entire groups of adherents) may or may not be the intended or accidental targets of anti-religious speech. At a minimum, it seems contrary to principle that persons who embrace religious beliefs, affiliations and activities which are regarded by others as (severely?) ridiculous should be shielded from such ridicule. It is thus very difficult to discern, precisely, the mischief which s 19 is intended to target.
[47] Herald Sun, 18, 19, 20 and 27 April 1996; The Age, 3 July 1996.
[48] See the similar formulation in Collin v Smith 447 F Supp 676 at 692 (1977).
[49] Malik, K, "The Perils of Pluralism" Index on Censorship, 1997, No 3.
[50] Free speech is not specifically emphasised in Australian Multiculturalism for a New Century: Towards Inclusiveness (1999).
[51] See e.g. the criticisms of the Irving article and Freckleton (op cit, n 62) in McNamara and Solomin (op cit, n 1); Hughes, R, "In Defence of the Right to Discriminate", The Sydney Morning Herald, 3 November 1995.
[52] Cunneen, C, Fraser, D and Tomsen, S (Eds), Faces of Hate: Hate Crime in Australia (Hawkins Press, 1997).
[53] Fraser, "Memory, murder and justice: holocaust denial and the 'scholarship' of hate", 163 ("Fraser").
[54] This is done "in order to point to the inherent limitations of the free speech paradigm [superficially dealt with by Fraser] and strategy in even understanding the points in issue"; Faces of Hate, 163. I have also relied on the "Introduction: Defining the Issues" ("Introduction") co-authored by the three editors of Faces of Hate.
[55] (1994) 16 Syd LR 358.
[56] Fraser, 168.
[57] Ibid, 172-174.
[58] 44 FCR 540.
[59] Fraser, 171.
[60] Ibid, 169, 171-172, 174.
[61] Introduction, 5, 8, 14; Fraser, 162, 168, 169, 172, 177.
[62] For criticism of it or the views it contains, see Huttner, R, "Case Note", (1994) 1 Aust J of Admin Law 167; Jones, M, "Racial Vilification Laws: A Solution for Australian Racism?" (1994) 1 Aust J of Human Rights 140; McNamara, L & Solomon, T, "The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?" (1996) 18 Adel L Rev 259 (in a footnote). For a sympathetic treatment, see Freckleton, I, "Censorship and Racial Vilification Legislation" (1994) 1 Aust J of Human Rights 327.
[63] Fraser, 163.
[64] Europe's Jews were the main victims, but others including Gypsies, homosexuals, and members of various religious groups were also the victims of the Nazis' mass murder and atrocities.
[65] Fraser, 164; "the overwhelming information confirming the reality and facticity of the Shoah", Ibid, 184.
[66] Ibid, 163.
[67] Ibid, 166.
[68] Ibid, 175-177.
[69] Ibid, 164.
[70] Ibid, 164.
[71] Ibid, 164, 165.
[72] Ibid, 165.
[73] Ibid, 163, 179.
[74] Ibid, 164, 165, 176-177, 178, 180-181, 182.
[75] Ibid, 165, 166.
[76] Ibid, 168.
[77] Ibid, 176-177.
[78] Ibid, 169-172.
[79] Ibid, 169, 171-172, 174.
[80] Ibid, 179 (approving the criminalisation of Holocaust denial in several European countries), (approving Canadian prosecutions), (decrying the abysmal rate of successful prosecutions), (decrying light sentences or failure to convict Canadian Holocaust deniers), 181 (Holocaust deniers are "perpetrators"), 182 (decrying meagre local attempts to criminalise Holocaust denial), 182-183 (decrying the use of the Internet to circumvent the criminal law), 183 (decrying the ideology of free speech protection as an impediment to criminal punishment), 185 ("the crime" of "Holocaust denial" must go unpunished in order that its truth be told.").
[81] Ibid, 167.
[82] Ibid, 167-168.
[83] Ibid, 172.
[84] Ibid, 167.
[85] Ibid.
[86] Ibid, 174.
[87] Ibid.
[88] Ibid.
[89] "Weltanshauung": "A particular philosophy or view of life; a concept of the world held by an individual or a group", Oxford English Dictionary, Vol XX, 149.
[90] Fraser, 177.
[91] Ibid, 178.
[92] Ibid, 181.
[93] Ibid, 172.
[94] Ibid, 168, 169-172, 175.
[95] Ibid, 169; see also 162.
[96] Ibid, 169, 170.
[97] Ibid, 169.
[98] Ibid, 174.
[99] Ibid, 170.
[100] Ibid, 169, 171.
[101] Ibid, 169-170. Fraser also records that Irving has been subjected to devastating "critiques": 169 The criticism which Irving has attracted is acknowledged in the Sydney Law Review article in far more detail than Fraser acknowledges. Fraser also overlooks the fact that, notwithstanding the hostility that Irving creates by his publications and speeches, he is (or, at least, has been until recent times) treated seriously by historians who manifestly would satisfy Fraser's view about who is entitled to be included in the category of respectable historians. For examples of historians who accord Irving some status in the historiography of Twentieth Century Germany: e.g. see Professor Gordon A Craig's lengthy review of Irving's book, Goebbels: Mastermind of the Third Reich (1996), The New York Review Of Books, 19 September 1996, 8, and John Keegan's opinion that Irving's book, Hitler's War (1997), was "among the half-dozen most important books on 1939-45": The Second World War (Pimlico ed, 1997), 499. More recently, Ian Kershaw in Hitler: 1889-1936 Hubris. (1997) and Hitler: 1936-1945 Nemesis (2000) makes use of Irving's work. I suppose, for the sake of explicit completeness, it needs to be said that Craig, Keegan and Kershaw may or may not be correct in their respective assessments of the merits of Irving's contribution to an understanding of history.
[102] Fraser, 170. The perils of eschewing the use of plain language and of assuming that every text no matter how clear it is expressed has hidden sinister meaning and must be deconstructed is further illustrated by Fraser who (at p 170) also falsely asserts that (a) Irving's historiographical work is characterised in the Irving article as "academic", and (b) that the Irving article reduces the work of Irving's critics to Irving's level.
[103] Ibid, 184.
[104] Ibid, 169-170.
[105] Ibid, 170, 172.
[106] This is the footnote referred to in the text at n 99 above.
[107] Fraser, 172.
[108] Ibid, 170.
[109]This claim of Fraser also involves a demonstrably false speculation as a reading of the omitted footnote from the Irving article makes plain. Moreover, Fraser also omits mention of the citation of the evidence led at Nuremberg and against Eichmann in Jerusalem.: "The Case of David Irving", 359. One of the works cited in the Sydney Law Review article was Deborah Lipstadt's Denying the Holocaust-The Growing Assault on Truth and Memory (1993). Since this article was prepared, David Irving has lost a defamation action brought by him in London against Professor Lipstadt and the English publisher of her book: see The Irving Judgment: David Irving v Penguin Books Ltd and Lipstadt (2000) and D D Gutenplan, The Holocaust on Trial (2001).
[110]Fraser, 170-171.
[111]Ibid, 171.
[112] See Bollinger, L C, The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986).
[113] Fraser, 163, 164, 175.
[114] Fish, S, There's No Such Thing as Free Speech and It's a Good Thing Too (1994).
[115] Fraser, 163.
[116] Ibid, 165-166.
[117] Ibid, 164, 165, 176-177, 178, 180-181, 182.
[118] Ibid, 170.
[119] Ibid, 177, 182.
[120] Ibid, 164.
[121] Ibid.
[122] Ibid, 174.
[123] Ibid, 172.
[124]Ibid, 177.
[125]Fraser, 162.
[126]For illustrations, see Annett v Brickell [1940] VLR 312; Brebner v Bruce (1950) 82 CLR 161; Worcester v Smith [1951] VLR 316; Ball v McIntyre (1966) 9 FLR 237; Samuels v Hall [1969] SASR 296; Lafite v Samuels (1972) 3 SASR 1; R v Smith [1974] 2 NSWLR 586; Connolly v Willis [1984] 1 NSWLR 373;
[127] See Executive Council of Australian Jewry v Scully (1998) 160 ALR 138 (on the statutory term "person aggrieved"); see also McGlade v Lightfoot [1999] HREOCA 1, (11 February 1999).
[128] See Gooding v Wilson 405 US 518 (1972); Rosenfeld v New Jersey 408 US 901 (1972); Lewis v City of New Orleans 408 US 913 (1972); Brown v Oklahoma 408 US 914 (1972); FCC v Pacifica Foundation 438 US 726 (1978); Hustler Magazine v Falwell 485 US 46 (1988).
[129] Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 at 559 per Tadgell JA.
[130] See n 24 above.
[131] 268 US 652, 673 (1925).
[132] 249 US 47 (1919).
[133] See Spencer v Dowling [1997] 2 VR 127. The anti-discrimination legislation contains separate sexual harassment prohibitions.
[134] Stokes and others and National Gallery of Victoria (Unreported, 6 November 1998, VCAT).
[135] See e.g. Delgado, R, "Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling" (1982) 17 Harv CR-CL LR 133; Matsuda, M, "Language as Violence v Freedom of Expression: Canadian and American Perspectives on Group Defamation" (1989) 37 Buffalo LR 337.
[136] The threat to free speech is illustrated by a recent recommendation in the United Kingdom that the legislation be amended so that a "racist incident" is defined as any incident which is perceived to be racist by the victim or any other person: Report, The Stephen Lawrence Inquiry (February 1999), Cm 4262-I, Chs 6, 47 (para 12).
[137] Tatz, C and Solomon, T, "Race Hate Bill Will Staunch the Flow of Words that Kill", The Australian, 22 March 1995.
[138] Introduction, 13-14.
[139] Fraser, 181-182.
[140] For example, he quotes approvingly from Baudrillard, Derrida, Finkielkraut, and Lyotard. For some examples of postmodern legal scholarship, see Hunt, A, "The Big Fear: Law Confronts Postmodernism" (1990) 35 McGill LJ 507; Davies, M, Delimiting the Law: Postmodernism and the Politics of the Law (London, 1996). A detailed critical examination of that scholarship is advanced in Farber, D A and Sherry, S Beyond All Reason: The Radical Assault on Truth in American Law (1997).
[141] "The Case of David Irving", 389.
[142] Fraser, 171 (footnote 5). This criticism sits oddly with Fraser's concern about what might be called the "tyranny of the footnote" (Fraser, 170) and the Holocaust deniers' use of footnotes (166), with Fraser's own sparing use of footnotes, and an almost complete absence of page numbers to the works referred to in his list of references.
[143] Fraser, 171.
[144] Ibid, 171-172. Fraser "Perhaps, if one takes a value-free approach, [Irving] merely wants to offer some ironic insights to a postgraduate seminar on Derrida, or perhaps, if one comes back to political reality, he wants to continue his long campaign to spew lies and promote hatred against his "traditional enemies"", Ibid, 172.
[145] At an earlier stage, the Irving article does deal, albeit briefly, with postmodernism (using that term in a wide collective sense) in a way which provides a clear enough explanation for the "offensive" sentence.
[146] Fraser, 169-171, 175; "The Case of David Irving", 382-393.
[147] Fraser, 171-172.
[148] As indicated below in the context of the undisputed record of Nazi activities of Martin Heidegger and Paul de Man, it is possible to distinguish (though not necessarily without difficulty) between the validity of the ideas and the persons expressing them. At the very least, it seems to be reasonable to suggest that the kind of skepticism which postmodernism exhibits ought to put postmodernists on notice that the activities of Heidegger and de Man may have perverted their intellectual endeavour. Heidegger's ideas do seem to have been intimately bound up with his positive attitude to national socialism. In de Man's case, it has been suggested that his theory of deconstructive reading was crafted primarily in order to dismantle "virtually every sentiment, axiom or affinity which as a young man he had harbored": see Donoghue, D, "The Strange Case of Paul de Man" The New York Review of Books, June 28, 1989, 32 at 36; see the Preface in Wolin, R (Ed), The Heidegger Controversy: A Critical Reader (1992). In any event, the possibility that there might be something [profoundly perverted] in extreme postmodern "reading" of texts ought to be reinforced in the face of attempts by Derrida to deconstruct de Man's anti-semitism: see Derrida, J, "Like the Sound of the Sea Deep Within a Shell: Paul de Man's War", in Hamacher, Hertz, W N and Keenan, T (Eds), Responses: On Paul de Man's Wartime Journalism (1989).
[149] Fraser, 171.
[150] The perfunctory nature of Fraser's investigative technique and his unhelpful use of source material is illustrated in his obscure passing mention of Heidegger. Fraser lists (without specifying the location of any particular passages) Theodor Adorno's, Negative Dialectics (English translation, 1973): Fraser, 185. Adorno, described by Frederic Jameson as Heidegger's "arch enemy", considered that Heidegger's philosophy was (in Jameson's translation from the original German) "fascist to its innermost cells": see Jameson, F, "Adorno in the Stream of Time" in Late Marxism: Adorno, or The Persistence of the Dialectic (1990), 9 (translation in footnote 8).
[151] The link between deconstruction or postmodernism and Nazi Germany is, understandably, a source of acute embarrassment for some of postmodernism's adherents. This is notably so in the case of Professor Jacques Derrida, who has sought to bring his particular technique of deconstruction to bear in order to salvage Heidegger's and de Man's tarnished personal and scholarly reputations. See, for example, the allegation that Derrida sought to censor Wolin's 1992 collection (n 154 below): Sheehan, N, "A Normal Nazi", The New York Review of Books, January 14, 1993 and the ensuing exchanges between Derrida and Sheehan, The New York Review of Books, January 14, 1993, February 11, 1993, March 4, 1993, March 25, 1993, April 8, 1993, and April 22, 1993.
[152] (1889-1976): On Heidegger's connection with deconstruction and postmodernism, see Ferry, L & Renaut, A (trans Philip, F), Heidegger and Modernity (Chicago, 1990); Rockmore, T & Margolis, J, The Heidegger Case: On Philosophy and Politics (Philadelphia, 1992); Sluga, H, Heidegger's Crisis: Philosophy and Politics in Nazi Germany (Cambridge, 1993); Ott, H (trans), Martin Heidegger (1993); Safranski, R, Martin Heidegger: Between Good and Evil (1998).
[153] (1919-1983): On de Man's connection with deconstruction and postmodernism, see Lehman, D, Signs of the Times: Deconstruction and the Fall of Paul de Man (1991).
[154] Sheehan, T, "Heidegger and the Nazis", The New York Review of Books, June 16, 1988, 38; Sheehan, T, "A Normal Nazi", The New York Review of Books, January 14, 1993; "Heidegger and Nazism: An Exchange", The New York Review of Books, April 8, 1993; Farias, V (trans Burrell, P and Ricci, G), Heidegger and Nazism (Philadelphia, 1989); Wolin, R (Ed), The Heidegger Controversy: A Critical Reader (1992); Rockmore, T, On Heidegger's Nazism and Philosophy (1992); Young, J, Heidegger, Philosophy, Nazism (1997).
[155] Donoghue, D, "The Strange Case of Paul de Man" The New York Review of Books, June 28, 1989, 32; Exchange, "Deconstruction, The Nazis and Paul de Man", The New York Review of Books, October 12, 1989, 69.
[156] Fraser, 163. Elsewhere, however, Fraser accords some recognition to "the ancient distinction between actions and words": Ibid, 167.
[157] Ibid, 164.
[158] Fraser, 180-181 (accepting as only literally true, but dismissing a Canadian empirical study concluding that trials of Holocaust deniers did not foster anti-semitism in preference for the metaphor of "victory" of Holocaust denial and "legitimation"). Fraser makes no attempt to identify any evidence about the impact of Holocaust denial in Australia.
[159] See e.g. Higley, J, Deacon, D & Smart, D, Elites in Australia (London, 1979).
[160] Introduction, 4, 5.
[161] Especially in the use of abstract words or phrases such as "contestation" (2); "discourses" (3, 8, 165, 169, 176, 178, 179, 180, 181); "discursive matrix" (164, 181); "discursive strategy" (178); "discursive policing" (5); "semiotic deployment" (164, 177); "semiotic effacement" (167); "semiotic resonances" (173); "the semiotics of the juridical space" (181); "facticity" (164, 184); "legitimacy" (13); "legitimation issue/crisis" (180), "hegemonic" (172), "Other" (2, 4, 5, 14) or "the Other" (4, 5); "policing of discursive boundaries" (6); "signified" (167), "signifier" (167, 177); "signifying practices" (166); "tropes of modernity" (174), "trope" (177); "meta-narrative structure/function" (181);.
[162] One trap involved in slavish commitment to jargon and abstraction was graphically demonstrated in the so-called "Sokal" affair in which a physicist's spoof rendering in postmodern jargon of some nonsense passing as physics was published without demur in a leading postmodern journal: Sokal, A, "Transgressing the Boundaries: Towards a Transformative Hermeneutics of Quantum Gravity", Social Text, No 46/47, Spring/Summer 1996, 217; Fish, S, "Professor Sokal's Bad Joke", The New York Times, 21 May 1996; Robbins, B and Ross, A, "Mystery Science Theatre", Lingua Franca, July/August 1996, 54; Weinberg, S, "Sokal's Hoax", The New York Review of Books, 8 August 1996 and the exchange, 3 October 1996; Sokal, A and Bricmont, J, Intellectuelles Impostures: Postmodern Philosophers' Abuse of Science (Eng trans, 1998); Sturrock, J, "Le pauvre Sokal", The London Review of Books, 16 July 1998: see also Gross, R and Levitt, N, Higher Superstition: The Academic Left and Its Quarrels with Science (1994).
[163] Introduction, 13.
[164] Fraser, 181.
[165] Ibid, 167.
[166] Ibid, 181.
[167] Ibid, 177.
[168] Ibid, 185.
[169] Orwell, G, "Politics and the English Language", in Orwell, S and Angus, I (eds), The Collected Essays, Journalism and Letters of George Orwell, Vol 4 I Front of Your Nose 1945-1950 (1968), 127.
[170] Introduction, 6.
[171] Fraser, 165.
[172] Ibid, 178-179.
[173] Ibid.
[174] Ibid, 168.
[175] Ibid, 174.
[176] Ibid, 174-175.
[177] Ibid, 167-168.
[178] Ibid, 177.
[179] Puplick, P, "Free Speech and Moral Leadership", Occasional Address, The University of Wollongong, 3 October 1996. The text of the address is available at http://www.lawlink.nsw.gov.au/adb.nsf/pages/speech5
[180] "An American's View of the Canadian Hate Speech Laws" in Waluchow, W J, Free Expression: Essays in Law and Philosophy (New York, 1994), 175.
[181] Equal Opportunity Act 1995 (Vic), s 4.
[182] These words are those of Jackson J in West Virginia State Board of Education v Barnette 319 US 624 at 637 (1943).
[183] Ibid, 640.
[184] See Frank, J, Law and the Modern Mind (1930); Frank, J, Courts on Trial: Myth and Reality in American Justice (1930); Llewellyn, K N, The Bramble Bush: On Our Law and Its Study (1930); Llewellyn, K N, "Some Realism about Realism: Responding to Dean Pound" (1931) 44 Harv L Rev 1222; Llewellyn, K N, The Common Law Tradition; Deciding Appeals (1960); Llewellyn, K N, Jurisprudence: Realism in Theory and Practice (1962); Twining, W, Karl Llewellyn and the Realist Movement (1973); Fisher, W W, Horwitz, M J & Reed, T A (Eds), American Legal Realism (1993); Schlegel, J H, American Legal Realism and Empirical Social Science (1995); Hull, H E H, Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (1997).
[185] Ross, A, On Law and Justice (1958); Olivecrona, K, Law as Fact (2nd Ed, 1971).