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Finkelstein, free speech and the global warming debate

By Anthony Cox - posted Thursday, 8 March 2012

Raymond Finkelstein QC has released his report on how the media should be regulated in Australia. It is a philosophical document with a clear intent about the extent of free speech.

Finkelstein makes this extent plain. At paragraph 2.47 he declares that free speech, which is equated, "for the most part", with the media [2.14], is not "absolute". At 2.50 and 2.51 he lists examples of where free speech should be constrained. The example of "hate speech" as the recent Bolt case showed is not uncontentious and the other categories such as obscenity have fluid standards, while others such as "the protection of private property" are esoteric.

For Finkelstein the nominal, unifying criteria of the restraints to free speech is "harm" in various forms [2.50]. But this is misleading because "harm" is the result of the real result of free speech. This is described by Finkelstein at 2.25. For Finkelstein citizens lack the capacity to respond properly to free speech and as a result "are often persuaded to believe what is already dominant or what fits their irrational needs." All the categories of "harm" flow from this 'irrationality'.


This is the essence of censorship which is always predicated by an assumption of superiority by those who wish to censor. The censor is superior because they can judge, without being irrationally affected, what is appropriate to be heard, read and seen by other citizens who are likely to be affected if they enjoy the same unfettered freedom as the censor.

This has particular resonance for the debate about man-made global warming or climate change [AGW]. Finkelstein has proposed a government funded body to regulate the media in Australia called the News Media Council. Finkelstein justifies this because of the failure of the current self-regulatory bodies, the ACMA, MEAA and the ACP.

In section 4 of his report Finkelstein lists examples of the failures of self-regulation. One such failure is 'bias' in respect of the reporting of the issue of AGW. At 4.20 Finkelstein uses the example of bias in the reporting by the Telegraph of the effects of the carbon tax which had not been quantified at this time. Finkelstein's summary of this article, which is based on a report by Mediawatch, is egregiously misrepresentative of the Telegraph article.

The Telegraph article clearly refers to "early estimates" of the carbon tax. At this time speculation was rife about the carbon tax with the Greens presenting a number of cost scenarios based on a carbon price ranging from $45 per tonneto $500 per tonne. Even treasury had done sample modelling at a rate of $30 per tonne.

It is therefore a gross hypocrisy to accuse the Telegraph of bias for doing a speculative analysis of the effect of a carbon tax before the quantum was decided when many other groups were doing the same thing. This hypocrisy is compounded by the fact that when the carbon tax quantum was announced the cost effect of the quantum was higherthan in the Telegraph's speculative analysis.

As for Finkelstein's claim that the Telegraph article was biased because it did not consider compensatory tax cuts the example of the family in the article was above the income threshold for eligibility for such cuts.


At 4.31 Finkelstein uses the reporting of AGW generally as a further example of bias particularly by The Australian. To reach this conclusion Finkelstein relies on information from the Australian Centre for Independent Journalism [ACIJ] which is run by Wendy Bacon, a strong advocate and believer in AGW and Robert Manne, also an avowed believer in AGW.

The dependence on Manne is particularly problematic because Manne shares Finkelstein's opinion of the inherent incapacity of the general population to understand complex issues like AGW. Manne says:

citizens cannot evaluate independently the scientific arguments and rationally choose to believe the conclusions of a handful of scientific pseudo-sceptics rather than those of the tens of thousands of the scientists researching and publishing in this field

For Manne there is no capacity or right to question the 'science' supporting AGW because that 'science' has been achieved by a consensus amongst climate scientists. Only scientists who have been subject to peer review are entitled to be part of this consensus. The peer review system works like this: you are a scientist and you submit a paper on AGW which is reviewed by your peers. But if all your peers accept that AGW is real aren't they all going to reject any view which diverges from the consensus?

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

The point is if experts like Spencer and Braswell are shown the door by the consensus what chance do average citizens have in expressing their doubts. For Manne the answer is none. It does not matter to him that the peer review system has systemic corruption as shown by the Climate-gate emails. All that is evident to Manne is that if ordinary citizens disagree with the official view of AGW they must be irrational.

Manne's position is exactly the same as Finkelstein's. Both assume that ordinary citizens are prone to irrationality and need to be guided by superior folk. Finkelstein has conformed to this assumption of superiority by the censor as shown by his suggestions for who would appoint the NMC, senior academics [11.46] and who would be the chair and head of the NMC, a judge or lawyer [11.50].

The idea that citizens need to be controlled in this way is repugnant and fundamentally anti-democratic. Equality of exposure to ideas and transparency of information are the pillars of any free society. Equally importantly, Finkelstein's proposed scheme ignores the possibility of bias by those doing the controlling or censoring. Finkelstein arrogantly ignores the manifest examples of bias and corruption by those who are controlling the AGW 'debate'; why would a more general censorship regime over all issues be any different? Who is going to control the censor?

Finkelstein has emphasised that 'the search for truth' [section 2] should be the lynch-pin of freedom of expression. The debate about AGW demonstrates the continuum of truth in a democratic society: at one end there is the group or consensus truth and at the other, the individual truth. The mechanisms for establishing truth in a democracy are science, legal process and ultimately the democratic process.

The consensus truth relies on authority of a superior group which 'peer reviews' its members to justify its truth while the individual truth must be sustained with ability to persuade. Each of the mechanisms for establishing truth in a democracy are based on individual truth: in science you can't elect truth or declare it by majority; at law all litigation is between individuals, even class actions involve individuals with a common complaint and the democratic process is an individual rights based process. In setting up the strawmen of marketplace truth [2.20] and the Foucauldian notion that there not be any truth [2.26] Finkelstein ignores the fact that the individual rights based process is the fundamental democratic method of establishing truth or the lack of it.

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

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About the Author

Anthony Cox is a lawyer and secretary of The Climate Sceptics.

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