Author:	Laurence W Maher LL B (Melb), LL M (ANU) Barrister, Douglas Menzies Chambers, Melbourne
Subjects:	Freedom of Speech (Other articles) Liberty
Issue:	Volume 8, Number 2 (June 2001)
Category:	Refereed Articles

Contents:

• Introduction
• The Contemporary Free Speech Debate In Australia
• Faces Of Hate/Faces Of Repression
• Charge And Refutation
• Outlawing Offensive Speech
• A Postmodern Detour
• Postmodernism, Free Speech And The Need For A Renewed "Realist" Skepticism
  • The Eschewing Of Empirical Investigation
  • The Propounding Of Grand "Theory"
  • A Determined Preference For Abstract Concepts Over Concrete Examples
  • A Broad Rejection Of The Idea That There Is Useful Plain Language
• Repudiating The Fact/Opinion Distinction
  • Vague And Subjective Criteria Of Liability
  • Assimilating Speech And Conduct
  • Psychic Group "Harm" And The Promotion Of Symbolic Legal Prohibitions
  • Penalising "Dangerous Tendency"
  • Digressing From The Struggle Against Discrimination
  • An Aversion To Trusting To The Truth
  • Education And "Re-Education"
  • Selectivity And Stereotyping
  • Fear Of Division And Disharmomy
• Conclusion
• Notes

And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter? {John Milton Areopagitica (1644)}

If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person that he, if he had the power, would be justified in silencing mankind. {(John Stuart Mill On Liberty (1859)}

If large numbers of people are interested in freedom of speech, there will be freedom of speech, even if the law forbids it; if public opinion is sluggish inconvenient minorities will be persecuted, even if laws exist to protect them. {George Orwell Freedom of the Park (1945)}

Introduction

1. This article is a response to the essay by David Fraser, "Memory, Murder and Justice: Holocaust Denial and the 'scholarship' of Hate" which is chapter 8 of Faces of Hate: Hate Crime in Australia (1997).

   The Contemporary Free Speech Debate In Australia

2. The role of those three fundamental and inter-related personal freedoms - freedom of thought and conscience, freedom of expression, and freedom of association and assembly - continues to excite vigorous public debate in Australia. This should bode well for Australia as a robust, free and open society. Yet there is a new mood of censorship abroad and the right to dissent - in essence, the right of the individual to be different - is under sustained and, to some extent, successful attack. Among recent events illustrating the wide-ranging nature and intensity of the contemporary free speech debate and the imposition of censorship are the following:
   • the passage of the Racial Hatred Act 1995 (Cth); [1]
     
   • the campaign in the 1996 federal election by the veteran political dissident, Albert Langer, [2] to persuade electors to vote in a way that was contrary to the preferential voting system prescribed by the Commonwealth Electoral Act 1918 (Cth), the steps taken by the Australian Electoral Commission to suppress Langer's campaign, and the imprisonment of Langer for disobedience to an order of the Supreme Court of Victoria forbidding him from advocating conduct contrary to that Act; [3]
     
   • Prime Minister Howard's claim, following the change of government in March 1996, that the value of freedom of speech was being reasserted in Australia after the lifting of what he claimed was the "pall of censorship" surrounding the previous (Labor) government; [4]
     
   • the unsuccessful Trade Practices Act action brought by a Professor of Geology against an ordained Christian minister in respect of the archaeological investigation on a boat-shaped formation near Mt Ararat in Turkey which the minister publicly claimed could be the remnants of Noah's ark; [5]
     
   • suggestions that there was a case for curbing the parliamentary privilege of freedom of expression when allegations were made in the New South Wales Parliament of misconduct concerning the former New South Wales Supreme Court judge, David Yeldham. Yeldham later committed suicide; [6]
     
   • the controversy prompted by the first Parliamentary speech by Mrs Pauline Hanson in September 1996, the violence which occurred at some public meetings later addressed by her, and the influence of her One Nation Party illustrated by its successes in the 1998 Queensland election; [7]
     
   • Mrs Hanson's successful application for an injunction prohibiting the broadcasting of a song subjecting her to satirical attack during the 1998 federal election campaign; [8]
     
   • the prosecution of the editors of the La Trobe University student newspaper, Rabelais, for the publication and distribution of an article entitled "The Art of Shoplifting";[9]
   • the unsuccessful second Federal Court challenge by the British historian, David Irving, to the continuing refusal of the Australian Government to grant him an entry permit; [10]
     
   • the denial of an entry permit to the Sinn Fein leader, Gerry Adams in 1996, and the reversal of that decision in late 1998;
     
   • the seizure by police in Darwin of photographs depicting the alleged rape and torture of an East Timorese woman on the basis that the photographs were obscene; [11]
     
   • the controversy surrounding the visit to Australia in 1997 of the American political activist, Lorenzo Ervin and the federal government's attempt to deport him; [12]
   • the unsuccessful calls in early 1998 for the denial of an entry permit to the US religious leader and political activist, Louis Farrakhan;
     
   • the denial by the Australian Government of an entry permit to a former member of MI6, the United Kingdom foreign security intelligence gathering agency, who had been accused of breaching and threatening to breach his obligation to keep confidential information acquired by him as a member of MI6; [13]
     
   • the failed attempt by the Catholic Archbishop of Melbourne in 1997 to breathe life into the common law offence of blasphemous libel in order to obtain injunctive relief to prevent the exhibition by the National Gallery of Victoria of the photographic image,Piss Christ, by the American artist, Andres Serrano; [14]
     
   • the institution of criminal defamation prosecutions in New South Wales and Victoria; [15] the High Court's recognition that freedom of expression regarding political and governmental matters enjoys some constitutional protection and the ensuing adjustment of the common law defence of qualified privilege in the law of defamation; [16]
     
   • the introduction of a co-operative national scheme of comprehensive administrative censorship embodied in the Classification (Publications, Films and Computer Games) Act 1995 (Cth) and complementary State and Territory legislation; [17]
     
   • proposals for the extension of existing censorship laws to take account of new communications technologies including the Internet and on-line services generally resulting in the passage of the Broadcasting Services (On-Line Services) Amendment Act 1999 (Cth);
     
   • calls for the removal of "offensive" books from public and school libraries, [18] for the banning of the second film adaptation of Vladimir Nabokov's novel, Lolita, and for the imposition of sanctions in respect of Louis Nowra's play, Miss Bosnia; [19]
     
   • disputes about Christmas nativity displays, public school Christmas activities, and Easter crucifixion displays; [20]
     
   • judicial recognition of changing community standards resulting in a lessening the reach of the law of obscenity; [21]
   • restrictions on the availability of informational material in day care centres imposed by the National Childcare Accreditation Council Guidelines; [22]
     
   • the attempt by the Commonwealth Government in late 1999 to impose speech restrictions on the US abortionist, Dr Warren Hern, as a condition of his entry to Australia on a speaking tour. [23]

3. Debates and campaigns about freedom of expression and censorship have been a central feature in the continuing evolution of Australian democracy and individual freedom. [24] By the mid-1970s, a liberalising highpoint had been reached after decades of debate about literary and artistic censorship in Australia. The guiding principle which had by then been embraced by an increasing segment of the Australian community was that adults should be entitled to see, hear and read what they wished subject only to such restrictions as were necessary, first, to prevent persons being exposed to unsolicited material offensive to them (especially unsolicited pornography) and, secondly, to protect children from material likely to be harmful to them. [25] No less importantly, restrictions on dissenting political expression and protest had been gradually reduced particularly in the wake of the widespread vigorous public opposition to military conscription which was reintroduced in the context of Australian participation in the Vietnam War. [26]

4. Paradoxically, as Australia continued to evolve as an open and tolerant society over the last 30 years, some of the liberating forces behind that evolutionary process simultaneously stimulated a renewed movement to impose legal restraints on individual freedom of thought, expression, and association. Australia has now entered an uncertain era of renewed enthusiasm for and imposition of State censorship. This development has been, in large part, a backlash against perceived liberal or libertarian excesses of the mid-1970s combined with the emergence of new communications technologies and of entirely new social forces and pro-censorship arguments. Varying greatly according to both the specific form and subject matter of the challenged category or content of expression and the ideological preferences of the would-be censors, the contemporary free speech debate nevertheless remains essentially a compound of competing claims about what is said to be harmful to Australians and Australian society as a whole and what, as a matter of balancing the relevant competing claims, that society can safely tolerate.

5. The emergence of new substantive justifications for censorship has led some proponents of renewed punitive legal restrictions on unacceptable speech to repudiate many, if not all, of what might be called the traditional liberal democratic or libertarian justifications for minimal restrictions on individual freedom of thought, expression and association. The new justifications frequently emphasise the protection of minority group interests and new conceptions of civic equality involving a sharp movement away from the centrality of individual liberty and individual rights and towards a preference for the recognition and protection of collective rights. The new censorship has been given effect in legislative prohibitions intended to deter and punish speech which, in substance, is said by the censorship proponents to be unjustifiably "offensive", "scurrilous", "insulting", "humiliating", "hateful", "degrading", "shocking", "intimidating", "threatening", "objectionable", or which vilifies or promotes contempt for or ridicule of persons or groups of persons on the grounds of race, ethnicity, sex, sexual preference, and disability. [27]

6. One prominent manifestation of the scope and complexity of the new pro-censorship movements is the sharply contrasting nature of the arguments offered in support of more vigorous censorship of pornography - putting to one side (so far as that may be possible) the vexed question of the definition of pornography. Concern for the effective protection of children against depictions of pornography (and violence) and their exploitation in the production of pornography continues to command widespread community acceptance. However, so far as adult access to adult pornography is concerned, the mid-1970s libertarian high point is now under sustained attack on more than one front. To the traditional claims that pornography tends to deprave and corrupt those exposed to it (children and adults alike) and should be suppressed as being contrary or offensive to Judaeo-Christian standards of decency and morality, there has been added the fundamentally different (and perhaps incompatible) secular feminist claim that pornography reflects and promotes the subordinated social position of women generally and is thus inimical to the achievement of equality. [28] The proponents of these two contrasting pro-censorship views are strikingly unlikely bedfellows in the continuing struggle against smut and depravity. [29]

7. The "right" (admittedly, a broad category) of the political spectrum has been the main traditional source and beneficiary of censorship. As some of the examples given above clearly indicate, the "right" remains an active and resolute source of support for censorship. It is notable, however, that much of the recent impetus for the reimposition of State censorship controls has come from the "left" (also a broad category) which traditionally has been the main target of censorship. Some sections of the "left" have exhibited a new found zeal in equipping the organs of the State with power to make judgments about the worth or truth of controversial ideas and speech and to deploy the policing apparatus of the State to suppress and punish speech deemed to be objectionable. The strong recent support for censorship from sections of the left should be a salutary reminder that the hard-fought battles for freedom of yesteryear were, in particular, characterised by (and, indeed, often successful because of) the quite deliberate and systematic use of what was usually regarded by the traditional proponents of censorship as vilification, and offensive, insulting, humiliating, degrading and hateful speech. It is, simultaneously, a clear signal that against the common sense proposition that sharp conflict of ideas and opinions is, by definition, a natural and healthy feature of all open societies, it is now often said that statements which allegedly have a mere tendency to promote conflict or divisiveness or disharmony along, for example, ethnic and racial lines, can no longer be tolerated.

8. Within some sections of the Australian academic and public intellectual community, the traditional liberal democratic commitment to the broad protection of freedom of thought, inquiry, expression, and association as a central element of a free society based on the rights of autonomous individuals is now characterised as being at odds with, and destructive of, the collective rights and claims for equality of certain officially recognised minorities. [30]

9. In much of the contemporary theoretical literature prevalent in the study of the humanities (or what is now more commonly referred to in academia as "cultural studies"), society is sweepingly depicted in terms of abstract concepts such as "dominated" or "subordinated" groups, "oppressed" or "victimised" minorities, "identities", "hegemony", "patriarchy", and so on. This has produced a sharp clash of values: a struggle often depicted as being one for (and between) liberty and equality. Since the mid-1970s, it has been increasingly argued by the pro-censorship left that a truly democratic society is one which actively discourages and, if necessary, through the apparatus of the State, punishes individual behaviour (including speech and speech-related conduct) [31] which is said to be inimical to the struggle to overcome so-called majoritarian or dominant group oppression of selected minorities. [32]

10. The sentiments supporting the new equality-based pro-censorship arguments are not without some force. Invidious discriminatory action or conduct (referable to religious belief, ethnic origin, sex, personal disability, and so on) in employment, accommodation, the provision of public services, and otherwise in the provision of goods and services in everyday life has been a feature of Australian society (as in all other societies) and has properly prompted the enactment of anti-discrimination legislation throughout the Commonwealth. However, the new wide-ranging emphasis on redressing the harm done to minority groups by discriminatory conduct has helped foster and entrench the claim that the traditional attachment to individual rights is deeply flawed in that individual free speech in and of itself may promote inequality and injustice. [33] In this overall context, it is argued that individual free speech has occasionally to be curbed where, because of its context, it has the tendency to permit or encourage the expression of dissenting ideas or opinions about the proper role or entitlements of selected minority groups in society, it can do more harm than good. For this purpose, the targeted "discriminatory" behaviour may, it is argued, legitimately include mere speech and speech-related conduct.

11. The new social, political and cultural theories which have underpinned much of the "left's" recent attack on liberal democratic claims for the primacy of the right of individual free speech can conveniently be gathered under the descriptive term "postmodernism". The broad postmodern church has many sects - poststructuralism, postcolonialism, and so on. Probably the clearest feature of postmodernism is that the prefix "post" is, to varying degrees, indicative of a strong negative or disapproving reaction to "modernism". For this critical purpose, "modernism" is taken to be a collection of ideas, attitudes and movements anchored in what proponents of "modernism" applaud as the liberating individualism, rationalism, and creativity of the (European) Enlightenment. The "modernism" which is now so strenuously attacked from some sections of the political and intellectual left is basically optimistic. It rests on ideas of continuing progress in universal human well-being. In particular, it is associated with the rise of rationality in the ascertainment of objective truth, and a corresponding decline in religious dogma, sectarian prejudice, and superstition generally. It pursues an ever-expanding field of human knowledge. More particularly, it is manifested in scientific discovery, technological advance and the relief of suffering. It promotes the expansion of personal liberty, the universal rights of mankind and other manifestations of universal human "progress". For its supporters, the Enlightenment is thus portrayed as a major step forward in the history of mankind.

12. This representation of the universal progressive movement of secular humanist society has never been immune to criticism. It has always discomfited the religious world simply because it is essentially secular and questioning. It is also said that its materialist excesses led to the rise of unchecked capitalism, socialism, Marxism, nationalism, imperialism, and related movements. It began to be questioned in quite different ways by sections of the secular left intelligentsia especially with the steady decline and disintegration of European Marxism from the early-1960s. The ensuing fragmentation of left-wing political movements and ideologies, the end of European colonisation, the emergence and sustained evolution of a new feminist movement, the rise of a new environmentalism, have, in part, both reflected and stimulated the rise of postmodernism and its ideological opposition to the supposedly oppressive "Western", materialist, and male-oriented values which are said, in turn, to be, in part at least, a product of the Age of Reason. The very influential rise of these new intellectual movements in the past three decades has been closely associated with the ideas of European (often French) theorists, including Michel Foucault, Jacques Derrida, Jacques Lacan, Jean François Lyotard, Jean Baudrillard, Julia Kristeva, Luce Irigary, and their bands of disciples in academia (and sections of the mass media) in Europe, the United States of America, Australia, and elsewhere. [34]

13. At the dominant abstract or theoretical level, postmodernism's rejection of so-called meta-narratives such as liberalism, socialism and (perhaps especially, Marxism) and the supposed collapse of the "old universal certainties" is traceable, in part, to the thoughts of Friederich Nietzsche, and the linguistic theory of Ferdinand de Saussure and supports miscellaneous attacks on so-called absolute or foundational or universal truth. In its social setting, the new analytical focus is frequently directed to the specific or particular experience of "marginalised" groups and on "difference" between groups. If any one word in its (often impenetrable) vocabulary is the fulcrum of the postmodern "project", it is the word "culture". The focus of much analytical activity is the pre-eminent desirability of a social condition gathered under the rubric of "cultural diversity" and the need to struggle against the cultural imperialism of Western conceptions of rationality and freedom. This is not, however, merely a (post)modern reworking of the liberal democratic idea of tolerance which necessarily embodies the proposition that the individual is free (rightly or wrongly) to denounce one set of ideas over another or to assert cultural and moral superiority. Since the attainment of cultural diversity is a paramount objective, any perceived disparagement of so-called minority culture[s] is especially deprecated in the postmodern dispensation. In this context, truth and reality are viewed as no more than functions of perception according to the social or political or, more precisely, the cultural vantage point or bias of the various groups which make up any given society or "community". Rationality, objectivity and truth are thus seen as "social constructions", relative to a particular group perspective rather than as value-neutral transcendent realities. The Western interpretative perspective arising out of the Enlightenment is but one, albeit the allegedly "dominant" (i.e. oppressive), cultural perspective. The new postmodern modes of analysis have necessarily involved, to varying degrees, an attack on the notion of a unique individual self and of a private identity that transcends group identity. For many postmodernists, the individual "self" is also labelled as a social construction. Individual freedom of expression is therefore chimerical. Rather, the expression of ideas and opinions primarily reflects some underlying group identity and is no more than an exercise in power between groups with unequal power. "Deconstruction" is therefore necessary to reveal the underlying struggle for power inherent in all claims for the truth. All this theorising has been underpinned by a very strong linguistic stimulus with the malleability or indeterminacy of language being the constituent reality. The dominant analytical preoccupation is with representation and text so that, in Derrida's famous aphorism - Il n'y a pas de hors texte. [35]

14. At the forefront of the new collective identity-based calls for renewed State censorship and punishment of disapproved of speech, is the claim that something generically (but very unhelpfully) labelled "hate speech" should enjoy no legal protection and should be stamped out at least insofar as it is targetted at selected (i.e the "disempowered", "oppressed" or "subordinated") minority groups. [36] The new postmodern social and political theories and associated explanations of social and cultural organization are, to some extent, manifested directly in the enactment of racial vilification legislation, homosexual, transgender and disability vilification legislation, [37] and related controls on programme content contained in the Broadcasting Services Act 1992. They are also capable of influencing the administration of the "bad character" amendments to the Migration Act 1958, which were largely prompted by the rejection of the visa applications by the controversial British historian, David Irving. As with more traditional forms of censorship aimed at literary or artistic non-conformity or political radicalism, the primary focus of the new censorship orthodoxy is the supposed bad tendency of certain speech or speech-related conduct; these days the target is speech the content of which is said to be expressive of or productive of bigotry or enmity or other "harm" based on race, ethnicity, sex, sexual orientation, or disability. The enactment of the Commonwealth Racial Hatred Act 1995 is perhaps the clearest example of the harnessing of these new cultural and social theories to the cause of the legal recognition and protection of "difference", "diversity", and new conceptions of equality. Insofar as these new proscriptions ostensibly seek to protect the diversity as distinct from the unity of the Australian polity, they amount, in substance, to a kind of modified law of sedition or heresy. Proclaiming the transcendent value of individual free speech as an element of national cultural unity is seen in some pro-censorship quarters as a form of heresy because it allegedly tends to de-stabilise (if not actually harm) vulnerable minority cultures which are central to cultural diversity. [38]

15. Postmodern proponents of the new censorship laws appear to take as a given that, without exception, entire minority groups within the citizenry possess, or are prone to exhibiting, a separate collective vulnerability to offensive or insulting or humiliating or intimidating speech. Some of the proponents of censorship purport to speak authoritatively on behalf of the affected groups to the extent that they regard the members of these groups as inherently lacking in the self-perception, self-respect and dignity which apparently equips the so-called dominant groups to withstand hateful criticism or vilification. There is in these new approaches to censorship a disturbing sense in which the latter day censors may be regarded as embracing the same kind of stigmatising discriminatory disdain - whether it is witting or unwitting is, of course, open to debate in any given case - about groups which motivates the bigots who in their various ways openly preach or otherwise foster hatred of or practise discrimination against homosexuals, Jews, Arabs, Muslims, Catholics, Asians, and so on. Against these pessimistic generalisations about vulnerable minorities, it is argued by supporters of minimal restrictions on individual free speech that, far from promoting equality, the new censors' claim that certain minorities are peculiarly fragile and unable to withstand "offensive" speech (even if, for example, it is demonstrably false or absurd) is calculated to promote and reinforce stereotypes of minority group vulnerability and thus to detract from the struggle for equality.

16. At a broader social level, the new postmodern censorship justifications are also manifested in an official rejection (more apparent, however, than real) of the view that there is an all-encompassing Australian culture or way of life to which all who reside in Australia are expected to conform enthusiastically. The active encouragement of cultural diversity (howsoever defined) is now embodied in the bipartisan policy of multiculturalism. The term "multiculturalism" (like so many related terms) can be (and, in everyday usage, is) defined and applied in a range of ways. For example, it is customarily used in a general way simply to effect an unfavourable contrast with the discarded White Australia policy and/or to point to residual prejudice said to be deeply embedded in the Australian character especially in what is commonly (if imprecisely) called the Anglo-Celtic heritage. At a more sophisticated level, multiculturalism, seen as a positive manifestation of tolerance in the true liberal democratic way, has unquestionably promoted societal diversity much to the enduring advantage of Australia. Not surprisingly, there are varying intermediate approaches to and interpretations of the concept. [39]

17. The theoretical stimuli for the existing bipartisan policy of multiculturalism owes something to European social and cultural theories about "difference" and minorities and "marginalised" communities which are central to postmodernism. What was, a generation or more ago, seen (rightly or wrongly) as a national virtue, namely, a preference for "assimilation", "integration" or civic heterogeneity based on an adapted, adaptive and evolving European civilization is now widely regarded as thoroughly discredited, if not downright dangerous. [40] This is certainly the case insofar as Australian Aborigines are concerned. It also the case insofar as past Australian migration policies may be conceived of as being inconsistent with the right of recognised minority groups to continue to embrace their group culture without in any way forfeiting their entitlement to full and equal participation in Australian society. By reason largely of the historical context of the White Australia policy, this has produced an environment in which vigorous questioning of the underlying utility of multiculturalism is susceptible to being stigmatised as inherently illiberal (if not racist). Unfortunately, much of the heat surrounding debates about Australian multiculturalism is attributable to a preference for vague theory and abstraction and a resulting failure to explore issues by reference to the realities of everyday life. [41]

18. The fundamental question here, however, is not whether multiculturalism (howsoever it is defined) is desirable, but rather whether Australians are prepared to tolerate those who dissent from the proposition that it is necessarily desirable or who take a different if not decidedly unpopular view of multiculturalism than that which is officially promoted.

19. The pursuit of multiculturalism in the broad sense of the primacy of (minority) group sensitivity over individual identity and autonomy has, perhaps inevitably, led to the re-emergence of an idea which seemed to have been mostly abandoned by the 1970s. This is the idea that the State should, by law, compel individuals to observe a minimum standard of decency, civility and respect in the expression of ideas and opinions in order both to deter individuals giving offence and to ensure social harmony. Now, however, the focus of the new State compulsion to deter the expression of confronting, divisive, provocative or extremist ideas and opinions is not, as it was in the past, the prevailing or supposedly "unifying" political, religious and social orthodoxies of the Australian society and culture. Instead, the new legislative restrictions on free speech are intended to protect the diversity of the polity by penalising affronts to the supposed sensitivities of "oppressed" minorities or "marginalised" communities. At one extreme the new restrictions may be characterised as seeking equal treatment in the sense of respect for (if not substantive acceptance of) views some of which, arguably at least, may run counter to the so-called majoritarian mainstream. It is in this setting that the broad terms "culture" and "cultural practice" are often invoked to erect barriers to open discussion and criticism of cross-cultural issues. The emerging deployment of the law and so-called speech codes or guidelines to stamp out selected forms of bigotry and hatred has also produced a new terminology. Thus, a major component of the debate about free speech and censorship in Australia is focussed on the merits and demerits of so-called "political correctness". [42]

20. The new concern for stamping out offensiveness and compelling respect for supposedly sensitive marginalised minorities is being taken a step further. In both the public and private sector, the new quest for equality is sometimes accompanied by proposals for "cultural awareness" or "cultural sensitivity" training for the members of the so-called dominant majority groups. This activity may be carried out legitimately under the guise of promoting equal opportunity in the workforce. Education is, of course, essential in combating bigotry, but to the extent that such programmes involve compulsion or prescriptive approaches to the ways in which issues of "multicultural diversity" may be discussed, they have the potential for manipulating or shaming individuals into embracing a new orthodoxy and for denying the role of individual dissent in our society.

21. Whereas the traditional liberal democratic ideal at its highest is that dissident speech - however disgusting, false, unpopular, offensive or upsetting - is to be tolerated unless there is a clear and present danger of tangible social harm such as violence, property damage, the moral corruption or exploitation of children, or some other compelling exigency, the new largely identity-based censorship models regard speech which is offensive or inimical to the interests of recognized minority groups as harmful per se to the struggle for equality. Moreover, not only are there certain broad categories of ideas which are not to be expressed in civilised and sensitive company, but it is asserted that, as a result, there are and must necessarily be approved and disapproved forms or habits of speech. It is argued that there are words or expressions the mere use of which is inherently indicative or expressive of "sexism", "ageism", "racism", "homophobia" and other unacceptable "isms" which is, thereby, harmful to the society. [43] By way of example, in the context of migration and multiculturalism, the positive or favourable use of the terms "assimilation" and "integration" is now frowned upon. In academia, this new Bowdlerism has been given effect in various codes or modes of approved (or disapproved) forms of speech. As suggested above, calls for suppression of speech embodying these vices are themselves frequently based on crude stereotypical claims about the characteristics of entire groups of individuals.

22. These new theoretical justifications for the imposition of censorship are, not surprisingly, hotly contested. The commitment to universal rights for autonomous individuals so long and so arduously fought for is strenuously defended. (This article is offered as a modest contribution to that old-fashioned if not unfashionable cause.) The vigour of the ongoing debate is illustrated by the fact that some proponents of the new State censorship apparatus seek to impose threshold limits on debate in part by denying altogether that prohibitions on speech which vilifies certain minority groups raise any free speech issue at all. [44]

23. At a more palpable level, contemporary proponents of increased state (and private) censorship also point to what might be called the conventional "residue" justification. This is the claim that protected free speech in Australia is, and always has been, what the State is prepared to allow. On this view, it is nothing more than what remains after the criminal law of threats, incitement to violence, sedition, official secrets, contempt of court, and obscenity etc, and the civil law of defamation, breach of confidence, intentional infliction of emotional distress, copyright, privacy protection, consumer protection and advertising regulation, etc are applied. On this basis, so-called hate speech laws are advocated as a necessary and appropriate response to a new social problem and they are justified simply as a further acceptable and proportionate limitation on the residue-based right of free speech. This is to be contrasted with an approach to free individual speech where the starting point is minimal restriction and any retreat from that requires compelling justification.

24. In opposition to the new censorship it is said that there are major conceptual and definitional problems with the preferred concepts of group rights and "identity" which underpin much of the new censorship movement. Like the abstract terms "culture" and "multiculturalism", the abstract term "identity" can be defined and understood in many and sometimes conflicting ways. One of the difficulties besetting contemporary free speech/censorship debates in Australia is that there is no generally accepted approach to the idea of group "identity" or, for that matter, individual identity. Given the diversity of human nature and individual human experience, this is scarcely surprising.

25. For some individuals, identity may be a single - arguably, all-defining - personal characteristic which may or may not be drawn from a currently preferred list of categories. Or, it may, for example, rest on nationality, a category that nowadays does not enjoy much approval by the intelligentsia because it tends, almost automatically, to be equated with chauvinism, xenophobia or over-active patriotism or nationalism rather than with responsible citizenship. For many (perhaps most) individuals, "identity" will be an amalgam of various personal characteristics and group loyalties, will vary according to context, and will transcend the legally recognised group boundaries. For others, identity will not necessarily be anchored in any group affiliation. Moreover, there will, inevitably, be logically prior disputes about which personal characteristics can properly be said to define collective identity, whether categories of identity can be ranked in any meaningful way, whether other categories of identity should be legally protected from "offensive" speech, and how intra-identity and inter-identity clashes involving "offensive" speech are to be accommodated or resolved. [45]

26. Interestingly, the legal protection of individual and group religious sensitivities is frequently mentioned in the context of support for contemporary claims that free speech is a limited (or residual) and not a fundamental right or constitutive value and, as such, one which ought not to be abused. But the protection of religious identity and sensitivity is nowadays much less pronounced than the protection of other forms of group sensitivity in Australia. [46] This is not surprising given the increase in the number of individuals adhering to religions other than Christianity, the simultaneous secularisation of Australian society, and the policy of multiculturalism. The steady evolution of individual freedom of expression over the past 150 years in Australia has been marked by a decline in punitive responses to attacks - whether real or imagined, scurrilous or otherwise - on religion and religious sensitivities. The Piss Christ episode in Melbourne in 1997 amply demonstrates the inherent contradictions and perils of seeking, selectively, to protect the sensitivities of entire groups of supposedly vulnerable citizens in a pluralist society. In a world of many competing one true faiths, sharp doctrinal conflict, divisiveness, and mutual "offensiveness" are, whether we like it or not, facts of life. The inevitability of such conflicts and the need to have an open debate about the risks of the repressive use of law in protecting group sensitivities were again demonstrated when the Catholic Archdiocese of Melbourne had a measure of success in objecting to the use of the business name, Virgin Mary's Bar, for a homosexual bar in suburban Melbourne. [47]

27. The new selective focus on group identity, group sensitivity and offensive speech has raised the quite distinct prospect that some topics may pass beyond spirited public debate altogether, that is to say, beyond debate which is robust, confronting, and, inevitably in some (subjective) sense, "offensive" or "insulting" or "intimidating" to some (or perhaps many) individuals. For example, at what point, if at all, does a vehement attempt to arouse public opinion against allegedly wasteful public expenditure on aboriginal welfare become, if at all, an attempt to incite hatred against aboriginals? [48]

28. In this new context, the rhetorical emphasis on "identity", "difference", and "oppressed minorities", and the need for cultural sensitivity, has, to some extent, become a kind of Utopian quest, if not a fetish. For some commentators, the "difference" of the so-called oppressed minorities is to be encouraged above all else and simply for its own sake. As a result, it appears to have become a preferred trait or superior (collective) virtue so much so that individual free speech has suffered. Accordingly, appeals to "Australian", "national", "shared", "community", "democratic", "fundamental", or "universal" values risk being demonised since this form of debate may be thought, as if by definition, to be productive of oppression of minorities or of "divisiveness". (Curiously, the proponents of "difference" inexplicably stumble when it comes to difference of opinion.) Thus, for example, the expression of any "unorthodox", "dissenting" or "radical" view about, say, multiculturalism, migration, aboriginal welfare, or the desirability of an official apology for past injustices to Aborigines can attract an epithet or be treated as prima facie suspicious or dangerous as carrying a tendency to incite vilification or hatred of minorities. The irony remains that so much of the effort now being put into suppressing offensive or confronting speech inevitably rests on demeaning stereotypical portrayals of the inherent human weaknesses of the selected minorities.

29. It has been argued that the promotion of "difference" far from being an anti-racist principle has been from the start at the heart of racial prejudice, discrimination and segregation. Whereas in the past group differences were seen largely as biological in nature, such differences are now more often than not seen as cultural. This has led to a situation where the celebration of difference which is at the heart of a broadly accepted view of multiculturalism has reinforced rather than reduced inequality and perhaps has fostered a pessimistic acceptance of the inevitability of social inequality and a preference for diversity as an end in itself. [49] The liberal democratic case for resisting restrictions on free speech is, in part, that there is nothing to fear and much social good to be derived from openly debating claims that diversity is not an end in itself or that diversity is only acceptable if it is productive of conformity. Fundamentally, Australian multicultural diversity is itself founded on, and is an expression of, national cultural unity. It has evolved as part of the Western liberal democratic tradition. Individual free speech is a core national democratic value that both transcends and promotes diversity of all kinds. It is the hallmark of a truly free, open, mature, and diverse society. Individual freedom of expression is thus central - not inimical - to the attainment of true equality. [50]

30. The everyday difficulty is that any suggestion that there can be a genuine and useful debate about whether some claimed forms of group sensitivity are exaggerated or, for example, that all of us as individuals have to put up with speech which outrages or offends us or confronts our most deeply held convictions can be easily and almost inevitably twisted or misinterpreted as callous insensitivity, if not outright prejudice or bigotry or hatred. In part at least, this is the inevitable outcome of the fact that it is inherent in the emphasis on stereotypical representations of oppressed minorities and group identity that an attack (especially a misinformed one) on an idea or a proposal affecting the welfare or interests of a particular identity interest can easily and, wittingly or unwittingly, be misinterpreted and labelled as a personalised or bigoted attack on all members of the group. [51]

31. This new focus on the paramount need to avoid giving "offence" or being "insensitive" or "divisive" thus, inevitably, raises the prospect that there will be a chilling self-censorship effect, as far as robust public expression is concerned, on people who fear, quite understandably, being labelled as bigoted or as hate mongers or as "racists". In this regard, history appears to be repeating itself. A generation and more ago an individual expressing "dissenting", "unorthodox" or "radical" views risked being labelled as, for example, an "anarchist", a "communist", a "communist sympathiser", a "pinko", a "red", a "fellow traveller", a "subversive", a "fifth columnist", a "fascist", as "disloyal", as a "pacifist", or a "degenerate", and so on. Nowadays, there is a new collection of disparaging labels, epithets, and stereotypes. The labels can be easily (if not promiscuously) applied in preference to contending with the substance of the disagreeable or offending claim, opinion or idea. The unifying historical thread is that calls for censorship and punishment of the expression of allegedly harmful offensive ideas are invariably supported not only by fanatics, but also by well-intentioned folk.

32. The essence of the free speech debate remains much the same. The burning question is: To what extent, if at all, are Australians to tolerate the expression of views which are rejected by most fair-minded citizens as offensive or bigoted or prejudiced or hateful or extremist, or which are perceived as being harmful in some tangible (or intangible) way? Has Australia progressed by disinterring the idea that there should be State-enforced conformity in preference to permitting adult individuals to think for themselves and to make their own decisions about truth and the value of ideas regardless of whether they are popular or unpopular? Is there to be legally protected free speech only for views which are anodyne or respectable or uplifting, or which command overwhelming majority acceptance, or only for views that have been approved by some apparatus of the State charged with protecting supposedly vulnerable group sensitivities? How, in the gritty reality of everyday life in a free and open society, is the harm of "harmful speech" to be defined and measured? Is dissent to be tolerated only where the views expressed are thought to be progressive, sensitive or inoffensive?

    Faces Of Hate/Faces Of Repression

33. At its most extreme, the new postmodern censorship movement has sought not only to claw back the controls surrendered by the State in various struggles up to the mid-1970s, but also to regulate the tone and content of the underlying debate about justifications for, and the alleged harms of, free speech. In some cases, the attack on the traditional liberal democratic view of free speech has produced its own radical reactions. In part, the collection of essays, Faces of Hate: Hate Crime in Australia, [52] illustrates the intensity of the contemporary free speech debate in Australia and the influence of new intellectual and social movements which seek a return to the days of State intervention to suppress ideas and opinions which are said to be unpopular if not repulsive to most fair-minded Australians. The focus of Faces of Hate is on "hate crime" including the search for new justifications for suppressing speech and speech-related conduct said to be expressive of hate directed, in a harmful way, to certain allegedly vulnerable minorities.

34. In particular, in chapter 8 of Faces of Hate, entitled "Memory, Murder and Justice: Holocaust Denial and the 'scholarship' of Hate", [53] David Fraser, a member of the staff of the Faculty of Law at The University of Sydney, offers "an examination of the phenomenon known as Holocaust denial" and its relationship to freedom of expression. [54] His examination focusses on three publications:
    • (a) John Bennett's, Your Rights 94, a pamphlet published by the Australian Civil Liberties Union;
      
    • (b)This author's article, "Migration Act Visitor Entry Controls and Free Speech: The Case of David Irving" ("the Irving article") published in the Sydney Law Review [55] and
      
    • (c)Unidentified statements, attributed to Professor Christina Jeffrey of Kennesaw, State College of Marietta, Georgia, evaluating an education programme in the United States of America.

35. Bennett is known for expressing views that purport to cast doubt on the widely accepted account of the Nazi death camps. Fraser attacks Bennett for that part of his pamphlet in which Bennett is said to deny that the Nazi regime in Germany systematically murdered millions of European Jews. [56]

36. Fraser attacks Jeffrey for a critical evaluation of a Holocaust education programme that was said to lack objectivity because the Nazi point of view was not presented. [57]

37. The Irving article offered an analysis of the decision of the Full Federal Court of Australia in 1993 in Irving v Minister for Immigration and Ethnic Affairs. [58] That analysis, stripped of its detail, was relatively straightforward. First, it was critical of the Commonwealth Government's decision to deny David Irving entry to Australia. It argued that however odious Irving's well known views on the Holocaust might be, unless there was a clear danger to public safety, it was wrong in principle both to deny him the right to express his views and to prevent Australian audiences from hearing him. This was what might be called a standard liberal democratic view inspired by arguments that have evolved from Milton through J S Mill to Ronald Dworkin. Secondly, the criticism of the denial of an entry permit to Irving was based on the elementary distinction between, on the one hand, advocating Holocaust denial (or Holocaust revision) and, on the other, advocating the right of individuals to express Holocaust denial ideas and opinions. Finally, the article stressed the dangers to individual freedom implicit in censoring unpopular ideas or opinions on the ground that they "harm" entire groups or classes of "victims" or "subordinated" or "oppressed" social groups or imperil the struggle for equality.

38. In chapter 8 of Faces of Hate, Fraser vehemently attacks the three chosen publications. In doing so, he accuses those who argue that Irving or any other Holocaust denier (or Holocaust reviser) should be free to express Holocaust denial ideas and opinions of thereby engaging in the nightmare of Holocaust denial. In making his attack on individual free speech, Fraser expressly reveals a preference for the abstractions of postmodern social theory and analysis and the allied analytical or interpretative techniques generically collected under the term "deconstruction". [59]

39. As the passages reproduced below amply demonstrate, Fraser contends that the Sydney Law Review is to be criticised for publishing a contribution which lends respectability to, and, in substance, promotes and is thereby part of what Fraser repeatedly calls "the nightmare of Holocaust denial". [60]

40. In the end, Fraser's thesis is that the distinction between expressing a view and defending the right to express the view (hereinafter "the categorical free speech distinction") is both false and dangerous. By denying the existence or validity of that distinction, Fraser is able to assert that hatred, and more specifically anti-semitism, has become part of accepted public behaviour in Australia in part by reason of the availability of material like the three publications which are part of Fraser's self-described nightmare. [61]

41. The Irving article enjoys no immunity from criticism - informed or ill-informed, polite or strident. Nor should it. [62] However, Fraser caricatures the Irving article and the debate about individual free speech and, in doing so, inevitably invites a response. The purpose of this article is to refute Fraser's attack on the article (and the Sydney Law Review) and his disparaging characterisation of this author's motivation or purpose in authoring it, to comment on Fraser's views about free speech which are representative of much of the new censorship orthodoxy, to offer a brief assessment of one discrete use by Fraser of postmodernism in legal scholarship, to identify the ways in which postmodernist claims are being deployed to undermine arguments for minimal restrictions on individual freedom of expression, and, finally (and briefly) to suggest that there is a need for a renewed realist skepticism in legal scholarship.

42. In the end, anyone interested enough in the debate provoked by Fraser's attack on the Irving article and the Sydney Law Review's alleged complicity in its publication can read the article and Fraser's contribution and make an independent judgement.

    Charge And Refutation

43. In order to demonstrate both the profound clash of values that the contemporary free speech debate exposes and the nature and extent of the error which Fraser commits in his contribution to Faces of Hate, it is necessary to set out the elements in Fraser's argument. Fraser's treatment of what he describes as the legal ideology and practice of free speech in the context of debates about Holocaust denial, [63] of which David Irving's work is said by Fraser to be a very prominent example, can be summarised as follows:
    The Nazi regime in Germany systematically murdered millions of European Jews. [64] Fraser describes this as a truth that is basic and immutable. [65]

44. This claim commands near-universal acceptance. Any person prepared to read the Irving article could not escape the conclusion that it accepts the claim and that the article is not concerned to investigate whether or not it is true. However, contrary to what is clearly stated in it, Fraser goes on to assert that the Irving article means something else, something which is contradictory, sinister and deserving of censure.

45. In contemporary Australia, hate-motivated vilification of minority or traditionally oppressed communities focuses attention on the fact that there is an increasing acceptance of the intimate connection between Australian democracy and a "sanctified" status for speech, that a critical distinction is made between speech and action, and that responding to such vilification may lead to censorship of unpopular ideas. [66] For the most part, even though it rests on a kind of formulaic abstraction, this is a viewpoint that can act as an introduction to the arguments for and against censorship.

46. There is a phenomenon called Holocaust denial. It claims to offer a "truthful" account of historical events, it claims scholarly respectability, [67] and it cunningly trades off a tradition that even the expression of loathsome opinions can foster debate from which the truth can (or, perhaps, inevitably, will) emerge. For Fraser, the manifest absurdity of their claim to historical scholarship, demonstrates that the practitioners of Holocaust denial are evil. [68] This author's description of the phenomenon of Holocaust denial and details of some of the main sources of the scholarly debate are set out in the Irving article and it is not necessary to repeat that description here.

47. The next step is illustrative of Fraser's preference for highly abstract argument, and metaphor. He asserts that, by reason of the matter set out in step 3, the real danger of Holocaust denial is that "Truth" in free speech ideology becomes synonymous with hate and, even more disturbingly, it becomes synonymous with legally protected hate. [69] It is best to let Fraser articulate this claim:
    To accept the vision of our society as defined by an overriding value placed in the concept and practice of free speech is to accept Holocaust denial as part of the discursive matrix that constitutes in a real and important way our democracy. In other words, Holocaust deniers seem to have found a way to make hatred and violence not just acceptable but necessary. (emphasis added)[70]

48. This step introduces a further layer of abstraction. Holocaust deniers are clever lawyers who have realised that merely being able to play the game is a form of winning. The Holocaust deniers accept something described (but not defined or illustrated) by Fraser as "the categories of the dominant discourses of modernity and thereby fundamentally [change] the substantive content of the categories". [71]

49. Reminding readers that Holocaust deniers are evil, Fraser states that they propagate the grotesque claim that there is a Jewish conspiracy to corrupt our civilization. Such propaganda is exemplified in the infamous anti-semitic tract, The Protocols of the Elders of Zion. [72] Holocaust deniers should be treated as (and therefore punished as) criminals. [73]

50. In some unexplained literal way, Holocaust deniers have had a "victory" - an "ultimate victory of form over content, of law over justice". That "victory" arises out of a legalistic strategy which is full of hate. [74]

51. Holocaust deniers have the temerity to seek to test the oral and documentary evidence which establishes that the Nazis instituted their campaign of mass murder. It seems to be Fraser's case that, by engaging in such an analysis, the Holocaust deniers have exhibited some devillish mastery of language which, again literally, immobilises all those exposed to such ideas even those who regard Holocaust denial with contempt and seek openly to resist it and to expose its practitioners as charlatans. [75]

52. Holocaust denial is a "nightmare". The "nightmare" is the denial of the tragedy of the Holocaust itself. It leads inexorably to an abstract condition described in the following terms:
    Law replaces justice as it becomes impossible to speak of justice. The attack against memory, the sacrilege against the dead and the living, the incitement to hatred which is the message and goal of Holocaust denial, are all examples of the violence of the law (Derrida 1990) and are all closer than we might like to think. The academic legitimation of antisemitism, of hatred, paranoia, conspiracy and violence, which are the goals of the Holocaust deniers and which unite them with other practitioners of hate, are increasingly public and present in everyday life. [76] (emphasis added)

53. Fraser repeatedly asserts that there are various forms of Holocaust denial. Holocaust deniers claim that they are exercising their right to freedom of thought and freedom of expression. [77] Persons (like this author) who defend the right of individuals to express Holocaust denial views are themselves directly implicated in the evil and nightmare of Holocaust denial. [78] Even those (like the editors of the Sydney Law Review) who permit an author to argue the free speech cause for Holocaust deniers are similarly implicated. [79] In that sense, according to Fraser, they are all Holocaust deniers and they are all criminals. [80] Fraser is not given to understatement and does not altogether eschew the use of concrete imagery. So, for example, the work of the phoney practitioners of "academic" or "scholarly" Holocaust denial is more pernicious than hate-motivated violence. [81] Again, it is best to let Fraser do the talking directly - these are examples:
    • Holocaust denial is nothing more than the final victory of the signifier over the signified, the ultimate goal of any bureaucratic state. The euphemism under the Nazis became the new reality. Now the reality of the "Final Solution" is itself under semiotic assault by a new group which seeks to remove the euphemisms of the Third Reich in order to pave the way for a "Final Solution" of the "Final Solution"; [82]

    • In the pages of the Sydney Law Review, Holocaust denial has achieved the kind of victories for which its proponents fight every day. Their goal is to be treated as "Holocaust Revisionists", as another "school of historical thought", struggling against the dominant and hegemonic "Exterminationists". In footnote 1 [of the Irving article], and in the pages which follow, they have won an important victory. The nightmare [i.e. of Holocaust denial] becomes reality, from your local newsagent to the pages of a self-declared elite law review. [83]

    • [the Holocaust deniers] are at once more subtle and more pernicious than their skinhead cousins, for their acts of violence exist not against property or persons in the dark of night but against memory and justice in what appears to be the light of day, in the illuminating effect of knowledge from which the Enlightenment takes it name, and from which our legal system claims to draw its fundamental principles. [84]

    • ... it is vital to keep in mind the fact that Holocaust deniers are the intellectual and ideological storm-troopers of a worldwide assortment of violent antisemites. While they may not themselves firebomb synagogues, desecrate cemeteries or physically assault Jews, they provide the legitimating grounds for those who do. Their words are violent, and their hands are bloody. [85]

    • Are we condemned to live out [the] nightmare, in which the reality and memory of the extermination are themselves relegated to the ash heap of history in a legal struggle in which criminals set the rules? [86]

    • The amnesty afforded Holocaust denial in the official discourse of Washington raises as acutely as do Bennett's pamphlet and Maher's article in the pages of the Sydney Law Review, the basic and fundamental question of the role to be played by legal discourse and practice (if they can be separated) in the struggle with and around Holocaust denial. Hate, slowly but surely, enters the mainstream. [87]

    • In what may appear to be a contradictory tradition, in this battle for the terrain of memory, the Holocaust deniers adopt many of the same tactics and strategies of the Nazi regime they seek to rehabilitate. [88]

    • Here we come to the real and legal nightmare of Holocaust denial. The rules of the game of legal modernity are suddenly turned on their heads. Civilisation and progress, democracy and the rule of law, are revealed by deniers as either amoral or immoral. They serve as no barrier to either amnesia of or an amnesty for extermination. Legal discourse, which is itself inextricably wound up in the Nazi Weltanschaaung, [89] cannot offer remedy or protection against Holocaust denial because Holocaust denial is itself a legal and legalistic discourse, simply deploying the signifiers of a modern legality against that legality. [90]

    • So the deniers take off where the SS left off. The politics of forgetting now becomes a legal discursive strategy. There is no proof, it did not happen. Those who claim it did must bear the burden of establishing the crime, as if it were an ordinary crime. There are no witnesses, there are no documents. The Shoah becomes an object of litigation, and the black uniform of the SS is replaced by the wigs and gowns of judicial discourse. [91]

    • This [i.e. Holocaust denial] is the ultimate rewriting of history, through the legal erasure of the victim on the mere assertions of the perpetrator. The redaction of the complaint now effaces the victim, as an action in legalistic/legalised eradication is undertaken at the behest of the denier, who, after all, is simply playing the game according to the rules, the legal rules, the rules of the crematoria, the same rules. [92]

    • Denying the reality of the gas chambers and the crematoria of Birkenau is not a matter for ironic interventions, postmodern jouissance, or for sardonic humour, except, it would appear, in the pages of the Sydney Law Review. [93]

54. In chapter 8 of Faces of Hate, Fraser is concerned with exposing three examples of "the nightmare of holocaust denial" from his daily, professional life, of which the Irving article is one. [94] That article is, he says, "the second part of the nightmare". [95]

55. In their treatment of the Irving article, steps 4-10 combine hyperbole with a disregard for the plain language of the Irving article. More particularly, Fraser's brand of "investigation" displays the following features. First, Fraser attempts to distinguish between the case presented in the Irving article and his two other chosen texts. [96] At times, he appears to want to separate the Irving article from what he describes (without explicitly identifying it) as "Bennett's political or ideological agenda". [97] These confused attempts to inject some antidote are, however, overwhelmed by the bane of the repeatedly contradictory assertions exemplified in the quotations reproduced throughout this article. Fraser's charge is that the Irving article adopts the discursive habits of the Holocaust deniers thereby lending intellectual support to their iniquitous position. But, in the end, Fraser's three chosen illustrations of one stream of Holocaust denial are, in his view, equally deserving of condemnation. [98]

56. Secondly, Fraser places quotation marks around the word scholarship in the title to chapter 6 of Faces of Hate. The Irving article is, he asserts, concerned with the "so-called" free speech issues raised by the denial of an entry permit to David Irving. There is nothing in Fraser's chapter which suggests that he is using the term "scholarship" in the title in any complimentary way. On the contrary, the "scholarship" is fictitious. But, in this respect, Fraser's discursive practice is self-referential and ironical. Much in the hand-wringing manner of Uriah Heep, Fraser is quite unabashed in describing the methodology of his own "investigation":

    I can only hope to avoid the sin of which I accuse others. I try to avoid some of the clearer problems by refusing to treat Holocaust denial writings as legitimate, academic discourse on the one hand and on the other by trying to avoid writing this essay as a dispassionate "academic" tract (italics supplied). [99]

57. Thirdly, Fraser seldom refers to what is expressly stated in the Irving article. Insofar as he does, he misrepresents it entirely. He ignores the steps in the argument which the Irving article advances. Instead, he is determined to "deconstruct" the Irving article in order to expose its supposed inner moral or sinful flaws. His objections to the Irving article are at what he calls (without clear specification) a different level of intellectual debate. Those objections arise out of what Fraser sees as the grave dangers of even attempting to discuss Irving's right to express Holocaust denial (or Holocaust revision) opinions. [100]

58. Fourthly, without revealing what he regards as the relevant criteria or evidence, Fraser is outraged by the claim that David Irving makes to being a historian and the fact that Irving is called a historian in the Irving article. This claim is, Fraser says, ridiculous. The starting point of Fraser's outrage here is snobbery and what might be called academic credentialism. It is that, since, according to Fraser, Irving "has no formal academic qualifications in the discipline [of history]", he can have no claim to being a historian. [101] Such is the nature of the denial in Fraser's analytical approach that the conclusion is inescapable that if Irving had a degree in history, his standing would be utterly transformed. What this says about "non-qualified" or "non-professional" historians seems to be altogether lost on Fraser.

59. Fifthly, Fraser displays something of a fixation about footnotes. For Fraser, the transgression involved in calling Irving a historian is made worse by reason of the fact that the Irving article allegedly accords Irving's published works "the ultimate in intellectual or academic recognition, the footnote". [102]

60. Next, Fraser seems quite oblivious to the basic distinction between, on the one hand, attempts to persuade David Irving and his ilk and their followers of the errors or prejudices of their historiographical endeavours and, on the other hand, the use of empirical evidence and rational argument to persuade the rest (i.e the overwhelming majority) of the population that Irving's thesis is open to clear and convincing refutation. [103]

61. Finally, overall, Fraser's treatment of his subject is perfunctory and expressed in language which can be fairly described as that of the heckler.

62. It is necessary to repeat what Fraser "deconstructs" in the Irving article as a shocking provocation: The Irving article was manifestly not concerned with Irving's version of history. At a superficial level, Fraser's complaint appears to be that, notwithstanding his own disinclination to enagage in "academic tract writing", he is driven to say that the Irving article is not the kind of "academic" article which should have been written about Irving. Moreover, it should not have been published in the Sydney Law Review for the very important reason that it is "part of the nightmare of Holocaust denial". By reason of Irving's status as a "non-historian" and his assault on a basic and immutable truth, the article should have contended that Holocaust denial is not (save presumably for its critics and critics of those who advocate legal protection of the right to express Holocaust denial views freely) a subject of legitimate academic interest or inquiry. [104]

63. Not for the first time, Fraser's curious mode of thinking fails the test of clear expression in the text. At this threshold level, the impression which Fraser appears intent on creating is that this author has been duped by Irving (and his ilk) in accepting at face value Irving's claim that he is a historian (i.e. of the credentialled category). [105] The elementary and insurmountable problem for Fraser here is that the Irving article, as it plainly states, is not an investigation of Irving's credentials, training and experience as a historical investigator or of his historical output.

64. In the face of such a clear statement in the Irving article, Fraser is, nevertheless, undaunted and unrelenting. He travels well beyond the charge of naiveté. As he makes plain more than once, Fraser considers that the mere acknowledgment that Irving purports to advance a revisionist account of the Nazi period is, in and of itself, deserving of trenchant criticism because it gives aid and comfort to the cause of Holocaust denial:

    Let me note again that Maher is aware of these facts and discusses them. At first blush, then, it would be difficult to see how Maher's article can be seen to have a similar effect to Bennett's clearly stated beliefs that the Shoah did not happen. But a closer reading of Maher's article demonstrates the dangers of treating Holocaust denial as a subject of academic inquiry.(footnote 4 omitted here.) [106] Footnote number 1 of Maher's chapter (sic) is a virtually complete list of Irving's books, accompanied, of course, by an apparent disclaimer that "Some of his most trenchant critics resent the application of the description 'historian' to Irving". Yet Maher proceeds to a full enumeration of Irving's works without further comment." (italics supplied) [107]

65. Again, the truth, for any fair-minded reader of the Irving article, is that it does not and cannot possibly have the alleged "similar effect" of Bennett's "clearly stated beliefs that the Shoah did not happen". However, such is the utility of the technique of deconstruction used by Fraser that the Irving article is equated with Holocaust denial.

66. Fraser's passion to deconstruct text also takes him beyond that "first blush" to seek out something sinister in what he provocatively calls "an apparent disclaimer". This compels Fraser to embrace what can only be called a ludicrous conclusion, namely, that the mere recording in a footnote in the Irving article of a list of Irving's published work is an unforgivable transgression of some unarticulated code of scholarly good behaviour. Here is what Fraser makes of this transgression:

    The effect of this intellectual legitimation of Irving might appear to be alleviated by Maher's subsequent statement that: "This article is not concerned with the truth or falsity of Irving's account save to say in passing that Irving's historiography has been assailed in the scholarly literature and the mainstream alike" (p 359, footnote omitted) However, an equally plausible reading of Maher's treatment of the subject is that there is a clear equivalency in both form and content established in the text between Irving and his critics.(italics supplied) [108]

67. Fraser's concept of "legitimation", which is central to his attack, is nowhere clearly defined. As a descriptive term it is, as is suggested below in the context of a discussion of postmodern terminology, a kind of code word or, more particularly, part of a postmodernist mantra. In substance, Fraser uses the term so as to assert that if mention is made of the right to advocate a disapproved-of text, the transgressor is thereby to be taken, conclusively, as endorsing (or "legitimating") the content of the disapproved-of text. The categorical free speech distinction is thereby conveniently annihilated. Hence, the alleged "clear equivalency in both form and content established in the text between Irving and his critics".

68. The passage in italics again demonstrates Fraser's determined preference for abstract over concrete forms of analysis and expression. In such a murky world, where there is an inability to differentiate between straightforward language and the most impenetrable verbiage, almost anything will be plausible to the indoctrinated or gullible reader. In this instance, the sloppiness of expression by Fraser does no more than serve as a vehicle to defame by stigmatising all proponents of free speech without regard to the substance of their arguments.

69. Despite the obscurantism which characterises much of Fraser's language, it is clear enough from the last passage quoted and from the overall context that this author is in decidedly bad company with Irving, Bennett, and Jeffrey. According to Fraser, in defending Irving's right to express his Holocaust denial views, this author endorses (or connives in the endorsement of) those views, as does the Sydney Law Review. [109] Fraser's candid eschewing of "dispassionate academic tract writing" and his rejection of the proposition that it is acceptable in a free society to advocate the claim that Irving and his ilk should be free to express their Holocaust denial views, frees (or drives) Fraser to go a step further and to engage in uninhibited speculations and insinuations about the author's scholarly motivation or purpose in authoring the Irving article:
    The ideological impact of [Maher's] writing strategy is to grant Irving the status of a claimant to academic standing, a status not challenged by [Maher]. Of course, it could be argued that Maher's purpose in writing his account of the legal issues of the Irving case was not to analyse Irving's writings but to offer a legal reading of legal texts. This position adopts the point of view that legal writing need not concern itself with historical truth or ethics or with the actual factual or moral background of an issue. [110] (emphasis added)

70. This is characteristic of Fraser's reasoning. Neither premise derives the slightest support from the Irving article. No such argument need be concocted since, as is plain enough, the Irving article does not analyse Irving's writings. In speculating about scholarly motivation or purpose, it is reasonable to expect that Fraser would be especially cautious and temperate in his use of language. Here his evident proclivity to look for the worst in people and in personal motivation does not arise in a vacuum. Its particular historical setting is mass extermination.

71. Again, despite the irksome fact that it revives the defamatory charge, it is best to let Fraser enlarge on his speculation and insinuation:
    On this view of the world, all ethical or moral judgment is removed from the equation, the issues to be dealt with are simply those which can be reduced to a question of law. Of course, the world of Nazi Germany was full of lawyers who spent many hours studying such legal issues as to how to deal with the problem of "Jews" swearing oaths in criminal proceedings or how to define, as a matter of law, individuals who had "Jewish" ancestors but did not meet the legal definition of a "Jew" under the Nuremberg Reich Citizenship Law. For many, if not most of them, such issues were "merely" interesting legal matters, totally devoid of moral or ethical content. This does not mean that lawyers who treat legal problems as legal, rather than ethical or moral ones are Nazis, but it does mean that at some levels it can be difficult to tell the difference between the Nazi Reichstaat and our own rule of law. Maher, like most of his colleagues, simply chooses to adopt the traditional idea/l of "legal" reasoning and analysis. Legal neutrality is not, in practice, ethically or morally neutral. (emphasis added) [111]

72. This is a sweeping and sanctimonious accusation. Once again, as any fair reading of the Irving article would readily disclose, it is false. Here, and elsewhere, Fraser's view of the ethical and moral world is that of a kind of neo-Puritan. It is clothed in self-righteousness and embedded in the moral certainty that he and those who agree with him exude an ethical purity and superiority which is altogether absent in those who do not agree with him.

73. In truth, Fraser's case against the Irving article is, from start to finish, a fabrication. It manifestly confirms Fraser's own frank and rather sneering acknowledgment that his "investigation" has no claim to being a scholarly contribution to the free speech debate. In its denial of the categorical free speech distinction, it ought not to be taken seriously. In its combined refusal to deal with the detailed argument in the Irving article, to invent a case to attack, and to disparage scholarly motives, it bespeaks reckless disregard for the truth.

74. However, Chapter 8 of Faces of Hate does serve the unintended purpose of reinforcing the case for individual freedom of thought/expression/association based on the conventional arguments about the need to tolerate speech in order to foster a free and open society. [112] It also provides a vivid illustration of the desirability of exposing to further debate the new postmodern justifications for censorship which, in part, seek to promote a synthetic view of equality at the expense of individual freedom. Those arguments deserve more respect and sophisticated exposition than Fraser is able to muster. Chapter 8 of Faces of Hate is a very angry treatment of an important subject. As a result, it limits the justification to the outlawing of Holocaust denial as "hate speech" to a claim that the offensiveness of such speech is so self-evident that there is really no need to condescend to any step-by-step articulation of the argument(s) supporting punitive responses.

    Outlawing Offensive Speech

75. Fraser scoffs at the tolerant liberal democratic view of individual free speech. So, for example, far from being a constitutive element of our democratic system, free speech is, for Fraser, a corrosive and corrupting value. Thus, appeals to the lessons of history - yesterday's heresy becoming today's orthodoxy, to the emergence of the truth from the vigorous struggle between ideas, and so on - lend no support to the claims made by the proponents of free speech for Holocaust deniers. [113] Apart from offering a generalised rejection of arguments favouring minimal restrictions on individual free speech, the nearest Fraser comes to stating some coherent position is his passing adoption of Professor Stanley Fish's attack on free speech. [114]

76. In particular, Holocaust denial, as a form of offensive speech, is for Fraser sui generis because it masquerades as historical scholarship. [115] Fraser's puzzled acknowledgment that Holocaust deniers purport to rely on evidentiary investigation and logical reasoning is, as indicated below, largely explicable by self-inflicted postmodern confusions about objective truth. [116] The critical empirical question of the precise nature and extent of the measurable adverse impact of Holocaust denial in the everyday world as providing a possible or arguable basis for its prohibition is not considered by Fraser. Instead, he relies on exaggerated metaphors and all-pervading abstractions to claim that the Irving article should not have been published and that its publication in the Sydney Law Review is itself an offensive and harmful act - or as Fraser labels it - "part of the nightmare of Holocaust denial".

77. That Fraser displays no fondness for empirical investigation in laying out a case for the suppression of "offensive" ideas and opinions is bluntly illustrated in his "victory" thesis. This is the claim that merely arguing for legal protection for the right to hold and express highly unpopular and offensive ideas and opinions delivers a "victory" for the cause of Holocaust denial, a victory for which the proponents of free speech for Holocaust deniers are themselves personally culpable. [117] We are, it seems, meant to accept this claim of a "victory" as axiomatic or structurally self-evident since no evidence is offered to support it. In truth, it is no more than a rhetorical device. Its use betrays a basic methodological inconsistency on his part given that more than once Fraser reminds readers that the fact of the Holocaust is a basic and immutable truth and that, in effect, in the particular case of Irving, the claim that he is a historian is spurious. [118]

78. Far from demonstrating why the law should be deployed to punish Holocaust deniers, the "victory" thesis is a powerful reminder of the force of the arguments of Milton and Mill and others for allowing the uninhibited clash of ideas and opinions. Insofar as it purports to portray the real world, the victory thesis is fanciful. But, Fraser candidly (if not grandiosely, given his use of the first person plural) admits to labouring under what he describes as ,"Our postmodern angst of reality loss". [119]

79. The line between reality and the confronting "victory" metaphor appears to count for little in Fraser's angst-ridden world. There is, it seems, no need at all to offer empirical support for such statements. The abject quality of the assertion that the effect of permitting the expression of Holocaust denial is somehow to annihilate the truth might itself be thought to dignify Holocaust denial and to devalue the courageous experience of the Holocaust survivors and their families and all the others who are not deterred from confronting or debating Irving's particular version of Holocaust denial however distressing that may otherwise be. In a self-pitying and narcissistic way, the fact that Fraser harps on the victory thesis itself detracts from the pursuit and dissemination of historical truth. If one side to a heated debate simply says it is all too hard and walks away from the debate, then any resulting "victory" is one yielded by default or capitulation.

80. There is also an arrogant and disturbing dimension to the "victory" thesis. It is the underlying authoritarian assumption that the mere exposure of "highly offensive" opinions has a paralysing effect on the populace at large or on supposedly vulnerable minorities or identities. Although in the specific context of repudiating Holocaust denial Fraser makes it clear more than once that there is an "underlying truth" [120] which "remains basic and immutable", [121] he is unable to concede that the mass of ordinary folks are sensible enough to think for themselves and to be in a position to grasp the same conclusion. It is, for Fraser, simply beyond them. [122] Thus, he all too readily and patronisingly attributes his "postmodern angst of reality loss" to everyone else. Stripped of jargon, the "victory" thesis is just another version of the censor's traditional condescension which is opposed to allowing individuals to think for themselves or to be exposed to ideas which may be troubling or confronting or deeply distressing. It provides the convenient justification for repressive State action to protect the supposedly gullible citizenry against their vulnerability to being subverted or corrupted by dangerous ideas or being paralysed by an attack on their individual dignity or self-esteem.

81. Superficially, Fraser's case against a legal right to express Holocaust denial/revisionist opinions appears to rest on some notion of harm (or risk of harm), but it is a harm that is never defined beyond metaphysical hinting and mention of something Fraser calls "free-speech value-neutrality". [123] There are, it seems, good ideas and bad, i.e. corrupting or paralysing, ideas. [124] The underlying working principle by which the corrupting ideas are to be identified in order for them and their proponents to be suppressed by State action is not disclosed. No attempt is made to demonstrate how protecting or suppressing the right to express Holocaust denial fits into the scheme of good and bad ideas. The all-pervading obscurantism of Fraser's postmodern approach makes it difficult if not impossible to locate the elements of the argument. The absence of analysis of harm is, however, not all that surprising. Ultimately, it emerges that Fraser's target is not any resulting actual harm of hate speech. Rather, it is the hate which is said to motivate the Holocaust deniers.

82. It follows that individuals who peddle Holocaust denial/revisionist messages are to be punished for their thoughts and that illegality is to turn not on acts but, instead, on thoughts, intent and motive alone. Along with the assumption that there is some inherent collective inferiority or helplessness in so-called oppressed minorities, this is a profound conceptual flaw in all the hate speech/vilification laws. Fraser acknowledges that, insofar as it involves violence, threatened violence, and property damage, what is generically described as "hate crime" is already adequately caught by the existing criminal law. [125] The emphasis on the need to punish the corrupt state of mind and heart as an end in itself takes us back to medieval days when compassing or imagining the death of the king, his consort, or his eldest son was treason.

83. A fundamental problem of the new postmodern censorship movement remains: what is meant by "offensive" (and its companion legislative terms)? And "offensive" etc according to whom? Where there are competing conceptions of offensiveness, of good and bad, whose version deserves to prevail, and why? For Fraser, questions such as these are treated as irrelevant or mischievous.

84. Australian law has, unfortunately, long proscribed "offensive behaviour", "disorderly behaviour" and the like and this has extended to behaviour which involved no more than speech or speech-related conduct. Almost without exception, such laws have been used by the State as instruments of oppression of unpopular or radical minorities, supposedly eccentric or vulgar or dangerous individuals, and the literary and artistic avant garde. [126]As a matter of principle, prohibitions on offensive speech are fundamentally at odds, first, with the right of an individual to speak his or her mind, secondly, the protection of dissenting minorities against majority repression, and, finally, with the right of every individual to be different. It is therefore a matter of major concern that a legislative preference for penalising offensive behaviour, including mere offensive speech, has re-emerged in Australia.

85. Perhaps the most notable recent resort to such a broad restriction on individual freedom of expression is to be found in Part IIA of the Racial Discrimination Act 1975 (Cth) (introduced by the Racial Hatred Act 1995) s 18C(1) of which makes it unlawful (though not necessarily criminal) for a person to do an act, otherwise than in private, if:
    • (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
    • (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in that group. [127]

86. For the purposes of s 18C(1), an "act" is taken not to be done in private if it
    • (a) causes words, sounds, images or writing to be communicated to the public; or
    • (b) is done in a public place; or
    • (c) is done in the sight or hearing of people who are in a public place.

87. The short title to the 1995 Act is something of a misnomer. Although Part IIA of the Racial Discrimination Act 1975 is headed "Prohibition of Offensive Behaviour based on Racial Hatred", the Act does not, unlike State and Territory legislation, prohibit incitement to racial hatred. Its censoring net is cast far more widely. Whatever shades of meaning there are or may be in the disjunctive collection of words, "offend, insult, humiliate, or intimidate", the wide scope of the Act's restrictions on individual speech is brought about primarily by the use of the word "offend".

88. The words "offend, insult, humiliate, or intimidate" refer to elusive reactive states of mind. Again, as the recent examples of censorship given in the introduction to this article demonstrate, what will be "offensive", "insulting", "humiliating", or "intimidating" to one person will be capable of being striking, moving, agreeable, stimulating, challenging, or uplifting to another person. Accordingly, at the beginning of the Twenty-first Century it is difficult to see what substance the individual right to free speech can retain in a free and open society if it does not carry with it the right, at least in some sense, to offend, if not to insult, humiliate or intimidate regardless of the context or subject matter of the speech. There are at least three more specific inter-related principled objections to prohibitions on "offensive" conduct such as that embodied in s 18C(1).

89. First, insofar as they mark the boundary of what is lawful/unlawful, the words "offend, insult, humiliate or intimidate" are vague in the extreme. [128] The field of operation of s 18C(1) depends on an ex post facto (subjective) judicial application of a test about the supposed bad tendency of words and conduct. This is the case notwithstanding the ostensible limitation of the proscription by the prefatory words, "the act is reasonably likely, in all the circumstances". These prefatory words which may have been intended to impose a type of objective test do not, however, contain any discernible objective standard(s). For example, is there to be any (and, if so, what) allowance for community standards of robust expression and the pre-existing law's recognition that freedom of expression is a fundamental right in a free and open society and one which in Australia now enjoys a measure of constitutional protection?

90. Perhaps the statutory language is directed at conduct which the Parliament regarded as being inherently offensive, insulting, humiliating or intimidating on one or other of the prohibited grounds, but why should it be assumed that as far as groups are concerned all or most or many members of a protected group will (or are likely to) react in the same way?

91. The vague and open-ended nature of the prohibition necessarily produces an inherent difficulty of individual compliance. It is impossible for an individual, in advance of the doing of an act, to ascertain the standard according to which the proposed act can (or is likely to) be judged to be either lawful or unlawful. In the words of a judge expressed in another context, the criterion "is so imprecise, and its application so much a matter of impression, that different decision-makers, each acting rationally, might reach different conclusions when applying it to the facts of a given case". [129] How, for example, is a person to know in advance of communicating some idea or opinion:
    • (a) what "all the circumstances" are according to which the idea or opinion can be said to "offend, insult, humiliate or intimidate another person or a group of people" on one or other of the prohibited grounds, or
    • (b) the relative weight or significance of each relevant circumstance?
    
    The safest course is to say nothing, or nothing even remotely "offensive". The idea that no individual should have a legal right not to be offended or not to have his or her convictions challenged is, it seems, highly offensive.

92. Secondly, there is the inevitable risk of selective or discriminatory enforcement according to the predispositions of the State enforcement authority, and/or orthodoxies prevailing from time to time so that an individual's right to express strongly dissenting opinions is subject to the whim of, or the external pressures exerted on, the policing agency. If the history of prohibitions on "offensive" conduct and speech is any guide, law enforcement is likely to be governed by oppressive political and other arbitrary considerations.

93. Finally, although the prohibition in s 18C is directed to "acts", it should be regarded with deep suspicion for the very reason that it tends to obscure the vital distinction between speech and conduct. Speech and conduct are best seen as involving a continuum with expressive conduct being given the widest possible ambit so that there is effective legal protection to individual free speech. Section 18C expressly targets the mere expression of ideas and opinions in addition to other forms conduct which in substance involve more than the mere expression of ideas or speech-related conduct. Moreover, s 18C explicitly discriminates on the basis of the content of the targeted speech. There is no sound basis in a free and open society why the law should give effect to such discrimination.

94. These objections are compounded by the obscurity of the ostensible limitation in s 18D of the Act which provides that s 18C does not render unlawful anything said or done reasonably and in good faith:
    
    
    • (a) in the performance, exhibition or distribution of an artistic work; or
    • (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
    • (c) in making or publishing:
      • (i) a fair and accurate report of any event or matter of public interest; or
      • (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

95. Section 18D is, in truth, a recognition of the futility (if not a logical contradiction) inherent in the search for a formula which only selectively prohibits conduct capable of giving offence. The use of the adjective "genuine", as in "genuine academic interest" and "genuine purpose in the public interest", is a further illustration of the unworkability of s 18C and the fact that legislation can be a very blunt instrument for securing civility and decency among the citizenry. For example, would a court be bound to hold that a visit to Australia by David Irving to promote his views about the Holocaust could not be a "genuine purpose in the public interest"? What, precisely, do the terms "reasonable" and "genuine" mean here? The potential which the 1995 Act has created:
    • (a) for the promotion of self-censorship across a wide-range of controversial speech,
    • (b) for official vetting of "offensive" speech, and
    • (c) for the wasting of scarce public resources in the extirpation of illegal speech is illustrated by the altogether bizarre spectacle of the Miss Bosnia case in which the playright, Louis Nowra, and the Melbourne Theatre Company were subjected to a full-scale inquiry by the Human Rights and Equal Opportunity Commission on the basis that Nowra's play offended a small group of persons loyal to Bosnia-Herzegovina. [130]

96. Taken as a whole, Part IIA is a direct attack on the proposition that the State has no business telling individuals what to think, and no business, absent a compelling justification far beyond the disagreeable or controversial content of speech, telling the individual what to say or not to say.

97. As indicated earlier, supporters of minimal restrictions on individual free speech frequently draw a distinction between, on the one hand, so-called mere expression and speech-related conduct and, on the other hand, expressive conduct or action going beyond mere speech so that restrictions on the latter which have the effect of limiting speech are more readily justifiable. It has to be said that the speech/conduct distinction is not always easily applied. After all, it is true that, in a broad sense, all speech is a form of conduct or action. Moreover, as Justices Holmes and Brandeis observed in Gitlow v New York, when it comes to the expression of ideas: "Every idea is an incitement". [131] In order to protect free speech adequately, it is necessary to give the mere speech element as wide an interpretation as is possible. However, some proponents of the new censorship regimes seek to characterise the speech/conduct distinction as artificial and dangerous and contend that "mere words" such as "hate speech" can be sufficiently harmful to warrant suppression.

98. This view is also exemplified in the curtailment of the expression of ideas or opinions especially those referable to minorities on the basis that mere speech can create or amount to a (discriminatory) "hostile environment". In substance, this new mechanism involves a re-casting of the offensive behaviour concept. It can be readily acknowledged, for example, that in the field of employment an employee may be subjected to unsolicited and unwelcome speech (or speech-related conduct) by an employer (or a fellow employee) in a way which is capable of interfering tangibly with the employee's right to work without unjustified and invidious interference. An employee may be subjected to depictions of sexually suggestive material (or spoken sexual advances), to religious proseltysing, to political campaigning, or to miscellaneous expressions of bigotry. The speech may be an isolated event or repeated or pervasive. Its impact on the targeted employee(s) may be transient or severe. It is, or should always be, to borrow the words of Holmes J in Schenck v US "a question of proximity and degree". [132]

99. The challenge here is to be clear about the purpose of the legislative prohibitions and to formulate a clear, fair and workable definition of the concept of the hostile environment. What is the relevant "environment" and when or how can it be said to have become impermissibly "hostile"? There are at least four possible perspectives - those of the perpetrator, the victim, actual bystanders (if any), and the hypothetical reasonable and objective bystander. A regime under which liability depends only on the perception of the perpetrator or the victim will, inevitably, produce its own discriminatory and capricious results especially since the mere fact that A disagrees with B is theoretically capable of enabling B to assert that A is hostile. An employer (or fellow employees or outsiders) should not be permitted to escape liability simply by asserting an absence of intention to be hostile. Likewise, an employee should not be entitled to establish liability simply by asserting that that there was a subjective perception of hostility. The hostile environment provisions ostensibly involve an attempt to anchor the law in a notion of justifiable harm prevention. However, unless they are carefully defined and applied, the price their enforcement will exact an unjustifiable retreat from tolerance. It is therefore critical to identify the actual harm.

100. Applying the hostile environment concept calls for an objective consideration of all relevant contextual factors including the extent of repetition, if any, of the unwelcome speech, the tone and language used by the speaker, and the overall context and the content of the speech. In the employment context, the mere fact that an employee is distressed by the knowledge that an employer (or a fellow employee) holds and expresses what may be perceived as offensive opinions about, say, abortion or censorship or homosexual marriage or aboriginal welfare or migration, ought not in itself be capable of supporting a hostile environment claim. Sexual overtures may or may not create the impermissible hostile environment. Ultimately, the specific content of the speech is one only (albeit potentially important) indicative factor. The real harm is to be judged objectively and is to be found in a course of conduct which tangibly interferes with the employee's right to work without unjustified interference. [133]

101. The risk that the hostile environment provisions will be used in a repressive way is real. In the Piss Christ controversy in Melbourne, the most vigorous opponents of the decision of the National Gallery of Victoria to exhibit the Andres Serrano photograph claimed not only that the Gallery had contravened the common law of blasphemy and legislative bans on obscenity, but that it had also contravened the Equal Opportunity Act 1995 (Vic). It was alleged that the mere fact that the Serrano image was publicly displayed was enough to produce a discriminatory hostile environment for Christians (and the adherents of other religions) such as to prevent them from having access to the Gallery thus subjecting them to illegal discrimination in the provision of services. In fact, the Serrano image was simultaneously acclaimed as aesthetically pleasing and artistically valuable, and condemned as profoundly disgusting and offensive. Although the complaint was struck out, the merits of the hostile environment claim were not resolved. [134]

102. The inherent imprecision of the concepts of offensive behaviour and the hostile environment demonstrate that there is a stark choice to be made between protecting individual free speech and being concerned that such speech (because of its form or content) may give offence. In prohibiting offensive speech and conduct in the 1995 Act, the Commonwealth Parliament has wrongly elevated assumed group feelings to a sacrosanct position. The imposition of legal sanctions may be thought to provide a kind of necessary therapeutic response to the psychic harm allegedly inflicted on protected minorities by what is so loosely labelled "hate speech". The objection to the new wide-ranging scheme of censorship embodied in the Act does not involve any denial that speech can be hurtful or threatening. Rather, the objection proceeds on the footing that in penalising offensive conduct the law ignores the fact that individuals are resilient. In postmodern terms, however, the feelings of offence, humiliation etc have their own "truth" and should not be questioned since, for example, the experience of the victim of "words that wound" is said to be every bit as real as that of the victim of a physical wounding. [135] However, the truth is that in this context there is a world of difference between the speech and the conduct. A system in which the supposed feelings associated with a vulnerable collective human experience operate to define liability is both unjust and unworkable. As the history of literary, artistic and political censorship over at least the past century amply demonstrates, the law is notoriously unsuited to the enforcement of virtue, good taste, and polite discourse and is used oppressively. [136]

103. The use of the generic term "hate speech" tends to detract from the free speech debate because, like the term "offensive speech", it is so hopelessly vague. Moreover, its rhetorical impact should not be under-estimated. "Surely, you can't be serious in wanting to defend the rights of hate mongers"? "How can you defend the indefensible"? These types of strictures suggest that the inquirer regards the object of the inquiry as being obviously beyond the postmodern pale of civilised conduct. Fraser's article demonstrates that it is but a short pejorative step to the conclusion that the defender embraces the allegedly odious views of the person whose speech rights are defended.

104. Fraser is resolute in his determination to deny the categorical free speech distinction and to promote the imposition of criminal penalties for "hate speech". That is a stance that is adopted by other Australian proponents of hate speech laws. Thus, for example, two leading Australian commentators had this to say in 1995:
     To put the right of a person to express [racial] contempt or hatred ahead of the right of a victim to be protected from its effects is, in itself, an expression of racism. [137]

105. It would be wrong, of course, to assume that all proponents of "hate speech" laws regard those who disagree with them as being, for that reason alone, racists. It has to be said, however, that such profoundly irrational and intolerant appeals can have great weight in swaying public feeling against supporting the right to express obnoxious opinions. It is no great task to argue for the free speech rights of the virtuous or the orthodox or the timid.

106. Part of the confusion inherent in Fraser's attack on free speech is a kind of Manichean notion of tolerance expressed in terms that seem to be de rigueur in the postmodern domain given the so-called victory thesis and the stereotypical representation of vulnerable minorities.
     The notion of "tolerance" itself has been increasingly deconstructed for the relations of power embedded in it. The notion implies the "tolerant" and the "tolerated", with an implicit and unequal power relationship between the two. Who indeed desires to be tolerated? To be tolerated is to be cast as less than, as an unequal who can be merely accepted within certain boundaries. The recent political history of Australia shows how flimsy "tolerance" can be and how quickly the boundaries can shift. The political climate from the beginning of 1996 has been one where the public expression of racism has increasingly become part of acceptable discourse. [138]

107. The deconstructionist effort here is, however, altogether wasted. This self-pitying conception of tolerance - as no more than being pitifully or sneeringly tolerated - is unrecognisable as part of any justification for minimum restrictions on individual freedom of expression. It is the antithesis of the liberal democratic claim that every person, regardless of "group identity", makes an equal claim of individual dignity and self-worth in being able to express and receive ideas and opinions. It confuses the positive and sustaining idea that a society is more likely to be healthy and to achieve true equality if it embraces/tolerates a wide range of opinions including sharply conflicting opinions with a negative and grudging idea that by permitting such a wide scope for individual expression we are being disdainful of vulnerable minorities. The irony is that on Fraser's simplistic binary view of the tolerant/the tolerated, David Irving really should be an object of derision, not the fear and hysteria which is inherent in Fraser's approach. Fraser's view in this respect is also incompatible with his adoption of the widely held view that the evidence against the Holocaust deniers is unanswerable and that there is such a thing as a basic and immutable truth. For someone so angry about a free and open society permitting the expression of "evil" opinions, Fraser mystifyingly swings, yet again, to a profoundly negative and defeatist conclusion.
     We lose any grip on memory, we begin to think in terms of forgetting that which we have not really begun to remember. [139]

108. Again, allowing for the ambiguous use of the first person plural, does Fraser really believe this is what is happening to him? Does Fraser really believe this what is happening to the rest of us? If so, where is the evidence for the latter sweeping assertion? Whatever the answers may be, we have here another puzzling metaphor. This, in turn, focusses attention on the pitfalls of Fraser's preferred postmodern investigative methodology that underpins much of the new censorship movement. To begin with it is necessary to comment on a disturbing phase in the evolution of postmodernism to which Fraser draws attention.

     A Postmodern Detour

109. Fraser's investigative technique owes everything to the broad sceptical or cultural relativist movement called postmodernism. [140]

110. Fraser identifies one passing descriptive reference to Irving's historiography in the Irving article as a criticism of something which, intellectually, Fraser holds dear. Fraser takes this author to task for including in the Irving article the following sentence:
     Ironically, there is clearly something of the postmodernist in David Irving in his extraordinary attempt to deny the Holocaust. [141]

111. Here, Fraser's criticism has two aspects: one formal and trivial, the other arguably substantial, but, in truth, misconceived. First, says Fraser, the passage in the Irving article "is not even graced with a footnote". [142] Secondly, this author has, it seems, blasphemed by participating in what Fraser calls,
     a now common discursive attempt to attack deconstruction or postmodernism by indirectly tainting it with some form of connection with the Holocaust or by some implied argument about "political correctness", [and] "less ambiguously" [by giving] "an intellectual legitimacy to Irving by granting to his work an intellectual gravamen it clearly does not merit. [143]

112. According to Fraser, this blasphemy is made worse because it trivialises and, worse still, pokes fun at the terrible suffering which the Holocaust inflicted. Thus,
     [t]o call someone who denies the existence of the Auschwitz gas chambers, at least by implication, a postmodern ironist, is uncalled for and offensive. It is also exactly the position adopted by the deniers themselves" (reference omitted). Denying the reality of the gas chambers and the crematoria of Birkenau is not a matter for ironic interventions, postmodern jouissance, or for sardonic humour, except, it would appear, in the pages of the Sydney Law Review. [144]

113. As far as the concept of postmodern "readings" of "texts" is concerned, Fraser's chastisement is on its face at once a fantastic yet distinctly revealing "reading". There is nothing in the Irving article which could be characterised as detracting from the monstrousness of the Holocaust or as making light of the experiences of its victims. Nor is there anything directly or indirectly tainting deconstruction or postmodernism by some form of connection with the Holocaust. The Irving article was not an investigation of "deconstruction". [145] Nor is there any implied argument about "political correctness" although there is an express treatment of "political correctness" and free speech the elements of which Fraser skates over. [146]

114. The focus of what Fraser describes as the "uncalled for and offensive" [147] sentence - the irony - is manifestly on Irving and his historiography, not on deconstruction or postmodernism as such. It would be a challenging task to establish that Irving sees himself as consciously espousing or practising some form of postmodernist credo. The passing reference to Irving's historiography simply illustrates the inherent defect in those self-contradictory brands of postmodernism for which truth as a concept is always chimerical or socially constructed or unknowable or dependent on no more than the perspective of the observer with the result that all historical events and opinions are contingent "texts" waiting to be "deconstructed".

115. Irving seeks to rewrite history in the face of overwhelming evidence (which is cited in the Irving article) of systematic Nazi extermination. Irving does not claim to be a postmodernist (of any particular school). Rather, he is a kind of unwitting postmodernist. His assault on historical truth involves an exaggerated and disordered skepticism, in the face of the truth, which is calculated to lead inevitably to a state of nagging doubt (if not relativism and nihilism). Thus, in its effect, Irving's skepticism closely resembles the relativism of much of what passes as deconstruction or postmodernism. The contextual basis for the sentence which Fraser characterises as "offensive" is clearly dealt with in the Irving article as part of an argument about new justifications for legal restrictions on dissenting speech. Again, Fraser ignores the surrounding argument.

116. The "offensive" sentence in the Irving article contains a claim that can be debated. But, Fraser exhibits exquisite sensitivity about it. As a matter of logical thinking, the claim which the offending sentence embodies does not make the adherents of deconstruction or postmodernism generally open to criticism for some dubious connection with the Holocaust any more than saying that Adolf Hitler's family had a Catholic background compels the conclusion that Catholics as a group must necessarily have his appalling sins and those of his gangster regime visited on them. [148]

117. Nevertheless, given the relevance of his trenchant criticism of the liberal case for minimum restrictions on individual freedom of thought and expression, Fraser's confused and confusing mention of a link between postmodernism and the Holocaust does raise an issue of importance regarding postmodern attacks on individual free speech. Unfortunately, just as there were more troubling direct links between some Catholics and some forms of institutional German Catholicism and Nazism, there were, in fact, as Fraser himself announces, direct links between deconstruction or postmodernism, and Nazism. Since Fraser uses the subject of such links to underpin his attack on the Irving article in the context of an insistence that this author write (and the Sydney Law Review publish) only the type of law review article that meets with Fraser's ideological approval, but more importantly because Fraser's treatment of the link which he introduces is misleadingly incomplete, some response is called for.

118. In footnote 5, Fraser contributes this aside:
     Ironically, Maher's efforts here [i.e. the reference to Irving as ironic postmodernist denier of historical truth] is not even graced with footnotes in support. His comment can nonetheless be seen to reflect recent debates around both the the "Heidegger affair" and the "de Man affair", revelations about the writings of Martin Heidegger and Paul de Man, two of the intellectual forces behind many of the writers associated with "deconstruction" and/or "postmodernism", and their involvement with Nazi ideology (Wolin 1990, Sluga 1993, de Man 1988 and Derrida 1988). (emphasis supplied) [149]

119. This is an example of Fraser's tendency to search for hidden sinister meaning in texts of which he disapproves. What is the reader to make of Fraser's footnote 5? It lacks an express point or conclusion, its abstraction and ambiguity misrepresents the historical record, and it excludes important sources [150] - all of which can be said not to come as that much of a surprise in an "investigation" that does not pretend to set much store by "dispassionate academic tract writing". What is Fraser saying about the links which he introduces? That they do not exist? That they exist, but that are of little or no consequence? That they raise a substantive issue about the utility of deconstruction and postmodernism? Whatever criticism might justifiably be levelled at contemporary Holocaust deniers, they can scarcely be blamed for the links which Fraser hints at. Fraser is, after all, attacking a mixed group of persons who whatever else they are cannot be labelled as conscious postmodernists. [151]

120. In the interests of investigative accuracy, what Fraser calls "the Heidegger affair" may be said, in short, to refer to revelations about the active Nazi record of the noted German philosopher, Martin Heidegger. [152] Likewise, what Fraser calls "the de Man affair" may be said, in short, to refer to revelations about the active Nazi record of the Belgian-American literary theorist, Paul de Man. [153] As Fraser records, both men (but especially Heidegger) occupy prominent positions in the evolution of postmodernism and deconstruction.

121. It is simply not an accurate specification to say that "the Heidegger affair" is concerned with revelations about the writings of Martin Heidegger and something abstract described by Fraser as his involvement with Nazi ideology. Rather its very concrete focus is Heidegger's prolonged active career as a paid up Nazi from the 1930s until the end of the Second World War. Not to put too a fine a point on it, Heidegger enthusiastically embraced Hitler's ascension to power and stands accused of anti-semitism. As Rector of the University of Freiburg, Heidegger was responsible for appallingly discriminatory treatment of colleagues who opposed the Nazis. [154] It is not a pleasant story at all.

122. Similarly, it is simply not an accurate specification to say that "the de Man affair" is concerned with revelations about the writings of de Man and his involvement with Nazi ideology. As with Heidegger, the focus is very concrete, namely, de Man's active wartime career in which he enthusiastically collaborated with the Nazis during their occupation of Belgium and accusations that he propagated anti-semitic material. As with Heidegger, it is not a pleasant story at all. [155]

123. It may well be that the explanation for his misleading introduction of the subject of the Nazi affiliations of individuals whose writings inspired some forms of postmodernism lies in Fraser's approach to the annihilation of the distinction between speech and conduct. [156] Thus, Fraser's complaint of "a now common discursive attempt to attack deconstruction or postmodernism by indirectly tainting it with some form of connection with the Holocaust" - through Heidegger and de Man - is an exceedingly weak complaint. It sets up a straw person. But, the problematic status of their connection with pro-Nazi activities is a fact of life. Any resulting intellectual or spiritual discomfort felt by disciples of Heidegger and de Man is entirely self-inflicted. To the extent that there is a connection which has attracted criticism, it is direct, but it is not the work of the critics of postmodernism. Rather, it is attributable to the work of scholars who would ignore altogether or (like Derrida) seek to explain away the pro-Nazi activities of Heidegger and de Man. In the contingent postmodern world where it is said that the text is everything and everything is text, the risk is ever present that someone apparently as devillishly clever, dangerous and victorious as Fraser depicts David Irving to be will, in effect, treat the Holocaust (or the widely accepted representations of it) as no more than text to be deconstructed. [157]

     Postmodernism, Free Speech And The Need For A Renewed "Realist" Skepticism

124. Fraser's misrepresentation of the Irving article and his attack on what he regards as the excesses of the liberal democratic case for minimal legal restrictions on individual free speech provide a vivid demonstration of the shortcomings of postmodernism. These ideological and methodological failings are to be found (in whole or in part) in various other applications in modern jurisprudence and have become quite influential in legal scholarship and legal education over the past 20 years. The systemic flaws can be summarised in following way.

     The Eschewing Of Empirical Investigation

125. In the postmodern pantheon, this characteristic is more often than not to be heralded as a virtue. Empirical investigation is no substitute for intuitive deconstruction. In Fraser's case, this is taken one step further. When the empirical work of others is at odds with his pre-conceived intuitive position, he simply discards it even where he acknowledges that it is literally true. [158] It is, of course, easy enough to toss off sweeping generalisations and abstractions concerning "dominant" and "subordinated" social groups, and so on. But, it is not as if such claims cannot be subjected to careful definition, to logical analysis, and to empirical testing. Such testing, however, requires thorough and methodical effort. [159] Fraser's occasional mention of empirical investigative method is hopelessly muddled. His inability to accept that the evidentiary claims of Holocaust deniers can be systematically analysed and empirically refuted is an inevitable outcome of his metaphorical and deeply pessimistic "victory" thesis;

     The Propounding Of Grand "Theory"

126. Fraser's article exemplifies a propensity to "theorise" not in order to propound precise and tentative hypotheses for the explanation of phenomena in the real world, but rather as a manifestation of preconceived all-encompassing assertions which are put forward as a kind of catechism in the postmodern magisterium. This attachment to ideology and dogma passed off as a form of theorising is also proudly held aloft as a virtue since there is no perceived need to engage in experimental testing or verification of the postmodernists' explanations; they are, it seems, to be accepted as self-evidently and (oddly) universally true. "Theory" is thus really no more than a rhetorical tool or a strategic device;

     A Determined Preference For Abstract Concepts Over Concrete Examples

127. This goes hand in hand with an attachment to sweeping intuitive generalisation. The less regard is had for the evidence of quotidian experience, the less likely it is that the postmodern theorist will succumb to the temptation to test theory or explain argument by the use of concrete examples drawn from the real world. The use of metaphor and abstraction is all-pervasive. It is conducive to the fudging (if not the outright denial) of the distinction between words and action evident in the concept of "symbolic violence" and the claim that hate speech is more harmful than physical violence; [160]

     A Broad Rejection Of The Idea That There Is Useful Plain Language

128. This tenet liberates postmodern theorists to engage in abstract speculation and insinuation driven by a determination to weave all phenomena into the recondite conceptual fabric of the postmodern ideological world. Fraser's article is an illustration of the fact that much of the literature of postmodernism is a direct challenge to effective communication. Given the dominant presence of abstraction and overwrought metaphor and the use of jargon and code, it seems that incomprehensibility is also a postmodern virtue. [161] This results in a propensity to project profundity for its own sake when common sense (if the desire to communicate effectively is a motivation) demands simplicity of expression. [162] Instead, there is a kind of talking in tongues for an elite which has been initiated into the postmodern linguistic rite. The passages reproduced above amply demonstrate Fraser's seemingly evangelical fondness for this stylistic feature. Here are some further examples:

     • ... law itself becomes not simply a form of redress against the perpetuation of hate, but must be reconstructed as a terrain of struggle in the process of positive reconstruction of identities. [163]

     • Indeed, in the realm of a legal and judicial discourse in which all of the signifying events are surrounded by the meta-narrative structure/function of free speech, the victory afforded to Holocaust denial within the semiotics of juridical space is, in fact, even more profound. A new reality now enshrouds Holocaust denial as the maniac becomes the martyr (Finkielkraut 1982:99). [164]

     • Attacks and offensives are waged (by the Holocaust deniers) on the semiotic front; reality is questioned by way of the deployment of new signifiers through which history is literally to be rewritten. [165]

     • Holocaust denial presents itself in the judicial forum as presumptively valid. This is their victory, a victory guaranteed to them by the legal system itself. As they claim, they become another school of thought about which debate is not only possible but which is required by and within the discursive matrices of the judicial process. The action/speech dichotomy is irrelevant. [166]

     • Here we find the point of conjunction between and among Nazism, Holocaust denial and modern legal discourse From the Nazis' elimination of the distinction between words and action, to the semiotics of the policy and practice of extermination, and finally to the deniers' linguistic/juristic deployment of falsehoods as scholarship in the present-day legalistic conception of the marketplace of ideas and of free speech, we can trace the evolution of modernity. [167]

     • Thus is the irony of Holocaust denial in a democracy. The truth has no forum, no tribunal, no justice, but the truth must prevail. The crime must go unpunished in order that its truth be told. [168]

129. One way of approaching these assertions would be to invite the author to use the same number of words (plus some) and to render the intended meaning in plain English alluding to at least one arguably verifiable concrete example of the specific assertion. If the idea to be conveyed is potentially useful in the pursuit of knowledge and, if it is verifiable, it will not defy the clarity that will inevitably follow the pursuit of concrete and direct expression.

130. More than 50 years ago, in what has become one of his enduring essays, George Orwell commented ruefully on the fact "that the English language is in a bad way".[169] One can only guess what Orwell would have felt had he lived to witness the unique debasement of the English language in the widespread use, especially in academia, of impenetrable and pretentious postmodern Newspeak.

131. Occasionally, there is a preference for an idiom which reduces itself to gibberish or propels the would-be postmodern theorist into wild exaggeration and bombast. The eschewing of empirical inquiry and the highly questionable characterisation of entire groups in the community as helpless victims lead to metaphorical excess. In Fraser's case, entire groups of citizens are "forced to forget", [170] and the Holocaust deniers "have succeeded to a large extent in seeming to reverse the onus of proof ... that the Holocaust did happen." [171] Similarly, the argument that Holocaust denial should be legally protected in a free and open society is scathingly described as "legalisation of the Holocaust". [172]

132. In Fraser's case, the tone of the language used to condemn the Irving article is so repeatedly inflammatory and apocalyptic that it bespeaks a fanaticism or religiosity in which all opponents of one's views, real and imaginary, and all contrary arguments, are lumped together for comprehensive vilification. [173] Here all ambiguity is shed. For Fraser, the starting point is that the Irving article, exemplifying (as does the Sydney Law Review's preparedness to publish it) what Fraser so recklessly labels "the nightmare of Holocaust denial", involves the academic legitimation of antisemitism, of hatred, paranoia, conspiracy and violence.[174] Anyone, but especially lawyers, who dare to defend freedom of expression for Holocaust deniers are described as behaving in the following terms-
     • Are we condemned to live out Finkielkraut's nightmare, in which the reality and memory of the extermination are themselves relegated to the ash heap of history in a legal struggle in which the criminals set the rules? Can justice become part of our discursive practice or are we condemned to live out the legalised nightmare of forgetting forced on us by free speech? (emphasis supplied); [175]

     • Thus, the deniers put themselves in the position of the embattled truth-seekers who are merely trying to place the "facts" in the marketplace of ideas so that people can make up their own minds on the question of the facticity of the Shoah. Against them are arrayed the forces of another "school of thought", the "exterminationists", who have gained the upper hand through lies and distortion and who seek to maintain their dominant position by barring access to the marketplace for [Holocaust] deniers through the same strategies of lies and distortion aided and abetted by laws which prevent them from presenting their point of view. To the free speech discourse which so enamours the legal profession is added the label of "martyr". To the label of martyr is added victim of Jewish persecution. And the strategy seems to be working. Maher and other lawyers like him accept the free speech argument. [176]

     • Now, the reality of the "Final Solution" is itself under semiotic assault by a new group which seeks to remove the euphemisms of the Third Reich in order to pave the way for a "Final Solution" of the "Final Solution". This is the nightmare of Finkielkraut's quotation which opens this chapter. Law replaces justice as it becomes impossible to speak of justice. The attack against memory, the sacrilege against the dead and the living, the incitement to hatred which is the message and goal of Holocaust denial, all are examples of the violence of the law (Derrida, 1990) and all are closer than we might like to think. The academic legitimation of antisemitism, of hatred, paranoia, conspiracy and violence, which are the goals of the Holocaust deniers and which unite them with other purveyors and practitioners of hate, are increasingly public and present in everyday life. [177]

133. This is scarcely the language of a scholarly investigator seeking out the truth. In the present social environment, the epithet "racist" is reserved by many for the most heinous forms of anti-social behaviour. The facile if not profligate use of that epithet threatens (if this is not already the case) to strip it of all meaning and utility. Fraser's denial of the categorical free speech distinction and his unambiguous sweeping use of the descriptive term "the nightmare of Holocaust denial" with indifference to the truth demonstrate just how far he strays from reality. Fraser has a tendency to speak in the first person plural which is consistent with a dogmatic attachment to platitudes and pieties. So, for example, Fraser who freely admits to a "postmodern angst of reality loss", attributes this puzzling condition to everyone. [178]

     Repudiating The Fact/Opinion Distinction

134. For the initiated, the technique broadly encompassed by the term "deconstruction", is a means, inter alia, of displacing the critical distinction between statements of fact and those which offer opinion, comment, judgment, or interpretation. As Fraser demonstrates in his "reading" of the Irving article, his postmodernism proceeds on the footing that all would-be statements and representations of fact are really only interpretative judgments and need to be subjected to deconstruction. In Fraser's case, the thoroughgoing commitment to postmodern readings is characterised by a persistent disregard of plain English.

135. More specifically, Fraser's article serves to illustrate the impact of postmodern cultural, social and political theories on the continuing debate about the value and boundaries of individual freedom of thought, speech, and association in a free and pluralist society. Arguably, postmodernism has generated the most detailed and comprehensive contemporary response to the edifice of liberal democratic arguments favouring minimal restrictions on individual free speech. The postmodern atttack on free speech is full-blooded. It goes far beyond mere skirmishing about the margins of the traditional arguments advanced by Milton, Mill, Dworkin et al. Its main features may be summarised as follows:

     Vague And Subjective Criteria Of Liability

136. Postmodernism's attachment to sweeping generalisation and abstraction and to dense figurative language provides part of the explanation for why the new group vilification laws in Australia focus on penalising such ill-defined (if not indefinable) abstract notions as offensiveness, insult, humiliation, intimidation and collective psychic harm. Similarly, it underpins generalised claims such as that which proceeds on the basis that hate speech laws are justified and necessary responses to the harmful "pollution" of our social and personal environment.[179] The term "hate speech" itself is vague in the extreme and is frequently used without any attempt to identify precisely what it means.

     Assimilating Speech And Conduct

137. Similarly, the postmodern fascination with the use of metaphor makes it inevitable that the crucial dividing line between speech and conduct will be fudged in order to suppress speech which is said, for example, to embody concepts like "symbolic" or "spiritual" violence or "spirit murder".

     Psychic Group "Harm" And The Promotion Of Symbolic Legal Prohibitions

138. The persistent use of abstraction and metaphor also paves the way for the justification that mere words deserve to be punished because they are so powerful as to inflict disabling "psychic harm" on entire groups of vulnerable or victimised citizens. This type of claim is made, in part at least, to meet the conventional free speech arguments based on the need to safeguard the primacy of individual self-expression as essential to democratic self-government. Proponents of hate speech laws frequently emphasise that, in any event, such laws are really only aimed at the most egregious expressions of prejudice and enmity and thus effect only a relatively minor and proportionate restriction on speech in the rebalancing of competing social interests. Moreover, it is often said that even if the new laws result in few prosecutions or civil sanctions, they are justifiable for their symbolic affirmation that nowadays individual free speech must yield where the protection of selective minority concerns and sensibilities is regarded as being more important.

     Penalising "Dangerous Tendency"

139. Claims that speech which is dangerous because it has a tendency to harm entire disadvantaged or victimised groups are rarely if ever supported by empirical data. It is not thought to be necessary to demonstrate apprehended tangible harm either because group psychic harm is, as if by definition, presumed or because it is really the state of mind or belief of the speaker which is the principal target of hate speech prohibitions. Where dangerous tendency is concerned, the clash between the liberal and postmodern free speech positions is particularly stark. In the case of so-called "hate speech" (as with all speech), two broad empirical questions necessarily arise. First, in any given case, is the hateful statement true or false? As James Weinstein observes, bigotted statements about entire groups of persons are usually demonstrably false and not believable by any reasonable person. [180] In many if not most situations, such statements simply hold the speaker up to hatred, ridicule and contempt. Secondly, what can we sensibly say about the likely impact of "hate speech" (howsoever defined) on a public audience? As a general proposition, speech can, of course, affect human behaviour for better or for worse. It can cause individuals to affirm or change their ideas, it can cause them to express ideas and opinions, and it can cause them to engage in conduct beyond the mere expression of ideas including conduct urging others to adopt ideas and opinions and urging others themselves to express ideas and to engage in conduct. But, so far as harm or detriment or dangerous tendency is concerned, that acknowledgment involves saying no more than the obvious, namely, that some feared (or welcome) event might (or might not) happen at some time in the (near or distant) future. The critical empirical sub-questions are: what is the gravity of the alleged threat of harm, and how likely and imminent is that threat? These discrete questions tend to be treated as irrelevant by postmodern critics of the liberal case for individual free speech.

     Digressing From The Struggle Against Discrimination

140. Assumptions about dangerous tendency and the absence of concern for careful empirical investigation contributes in part to the explanation of why proponents of "hate speech" laws seldom if ever concern themselves with the following questions: Are laws which are aimed at punishing individuals not so much for what they do or say, but rather principally for what they think or feel, likely to bring about any measurable improvement in the attitudes of those individuals, their followers, or, more importantly, in society as a whole? Are such laws and their associated police apparatus likely to achieve any reduction in everyday invidious discriminatory conduct in, for example, housing, employment, or the provision of public services? An affirmative response to these questions seem highly unlikely. For all its use of postmodern imagery, there is a complete failure of imagination and understanding in the literature of the case advanced by the proponents of censorship of hate speech. Utility seems to be an irrelevant factor.

     An Aversion To Trusting To The Truth

141. The postmodern aversion to claims for the existence of objective truth or of truth that is not somehow always provisional or contingent on text or social context or power relations is frequently offered as an answer to the so-called "marketplace of ideas" justification for minimum restrictions on individual freedom of thought and expression. If, as postmodernists contend, all claims to truth are, to some extent, socially constructed or chimerical, then allowing and encouraging the struggle between conflicting ideas offers little or no prospect of ascertaining truth. In a very tangible way the relativism of postmodernism, the idea that one "truth", idea or viewpoint or interpretation is, culturally, as good as the next, is entirely incompatible with the conventional argument in favour of maximising individual free speech that we have nothing to fear from the clash of ideas. This, however, draws attention to what critics of postmodernism see as one of its central flaws, namely, its simultaneous rejection of "false universalism" and claims for objective truth, and the iron certainty of its own unique claims for the universal necessity for and reliability of deconstruction as the technique for revealing the truth of all power relations.

     Education And "Re-Education"

142. Postmodern concerns about the perils of spirited exchange of ideas and opinions in a free and open society is not manifested only in support for punitive responses by the State to hate speech. There is also an emphasis on the need for the State to give voice to the feelings and stories of the minorities who are allegedly "excluded", "silenced" or "marginalised" by a regime which encourages or permits maximum individual free speech and one which, moreover, is "free" only to those who have access to the organs of the "dominant" mass media. Education is, of course, crucial to the fight against bigotry and hate. The new hate speech and censorship laws are not limited to punishing the expression of disapproved of ideas and opinions judged to be inimical to the dignity or wellbeing of disadvantaged minorities. They also provide for the creation of Commonwealth and State anti-discrimination bureaucracies whose functions include the dissemination of officially approved ideas and forms of speech concerning those minorities. This function is given effect, in part, in the promotion of public educational processes for inculcating "cultural awareness" and "cultural sensitivity" in which "dominant majority insiders" are, as it were, initiated into an an officially approved understanding of minority sensibilities partly through self-abasement. However, the line between genuine education on the one hand and therapeutic indoctrination on the other hand may be blurred if and when a zeal for orthodoxy takes hold. The worrying fact is that there is a kind of Orwellian "thought crime" dimension in the new concern of the State to police the way the citizenry thinks. This is manifested in State legislative provisions which explicitly seek to regulate "genuine beliefs" and in the use of the concept of "lawful political beliefs" and "lawful religious beliefs" [181] which seems inevitably to carry with it the chilling prospect that the coercive power of the state can be applied to an individual because of her or his "unlawful" beliefs".

     Selectivity And Stereotyping

143. Ironically, the new hate speech laws are themselves discriminatory. The postmodern passion for the primacy of collective identity over autonomous individual personality and the cluster of "theories" about vulnerable minorities lays the foundation for hate speech laws targeted not at hate or bigotry or sectarianism in general but, instead, at selected categories of hateful expression and their justification on the basis that the right of each individual to free speech has to yield. The new vilification laws are based on stereotypes and are entirely arbitrary in their selective focus on the content of the targetted speech. They would, of course, be no less objectionable if they applied to offensiveness or vilification based on "class, creed, party or faction". [182]

     Fear Of Division And Disharmomy

144. The postmodern concentration on the supposed inherent "victim" status of oppressed minorities produces a preoccupation with the need to be sensitive and to achieve equality by recognising the "truth" of subjective feelings and the claim that entire victimised or marginalised groups of citizens need to be protected against the "psychic assault" of offensive ideas that is to say ideas that individuals do not want to hear. Accordingly, not only is the traditional liberal argument that the truth will emerge from the clash of ideas in the marketplace of ideas repudiated because the truth can only ever be a social construction, but the very idea that there should be a clash of ideas is denounced because of its alleged tendency to be productive of conflict, disharmony, and resulting collective psychic harm to the vulnerable minorities. This approach ignores the fact that conflict is an inherent characteristic of a free and open society and, no less, the inevitability of some conflict as a product of multicultural diversity.

145. In the celebrated 1943 school flag salute case in the Supreme Court of the United States, West Virginia State Board of Education v Barnette, Mr Justice Jackson drew attention, in the following terms, to the futility of coerced "uniformity of sentiment in support of some end thought essential to [the] time":

146. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp our Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the last failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. [183]

147. Fraser's postmodern views about individual free speech manifested in chapter 6 of Faces of Hate are antithetical to free speech, to democratic values, and to scholarly investigation. They amount to little more than the crude claim that if a disagreeable idea upsets you enough, you are justified in seeking to deploy the criminal law to suppress those who voice it.

148. Whatever else it may be, or may have spawned, postmodernism (used in the broad generic sense referred to earlier) is a manifestation of skepticism as to claims about the real world and the ways in which we acquire reliable knowledge about the real world. It is, however, no criticism of postmodernism to observe that it promotes skepticism. Academic or scholarly investigation - that is to say, the vigorous striving for and imparting of truth - thrives in and profits from skepticism and open, vigorous and questioning debate. There is nothing especially novel about sceptical analyses of our legal system. The continuing progress of legal scholarship no less than other areas of scholarly endeavour, has been marked by various forms of skepticism. In particular, Twentieth Century legal scholarship has been significantly advanced by the output of the skepticism displayed particularly by the so-called American [184] and Scandinavian [185] legal realists and by others influenced by them. Theirs was a skepticism which embraced careful empirical investigation and a concern for the way in which the legal system in fact operated in society when considered alongside the aspirational (and often pompous and hypocritical) claims made for it. It was optimistic and instrumental. It was, however, a skepticism which eschewed sweeping dogmatic and sectarian claims about law and society; it was more a method than a rigid creed. And it was a skepticism whose practitioners sought to use the results of careful empirical investigation to effect progressive law reform and not as a platform for advocating nihilism and moral panic or repressive laws.

     Conclusion

149. The debate about free speech should always be stimulated by skepticism, but it will not benefit by being swamped by abstraction, jargon or postmodern dogmatism. Nor, despite Fraser's claims to the contrary, do we have anything to fear from the continuing debate and the vehemence of claims for minimal restrictions on individual free speech. Fraser says he is worried by "[o]ur postmodern angst of reality loss". It is, however, an entirely self-inflicted condition. What should be a matter of concern is the complete folly of the current commitment to equipping the State with the power to police the way its citizens think in order to protect the sensitivities of entire groups and to coerce uniformity of sentiment.