, , , , , , , , , , , ,

In a recent blog post, Tim Wilson, the Australian Human Rights Commissioner, has defended Tony Abbott’s new rules restricting public servants in their political speech. In particular, he argues that it is not a genuine limitation of their speech and that it is a reasonable rule to impose on their employment. Here I will illustrate the process of argument analysis by a treatment of his argument. A prior caveat, however: there are always multiple, distinct ways of analysing arguments; and they will often be equally defensible. The goal of argument analysis is not to find a single, definitive argument which conclusively establishes a correct conclusion. (The plea for “proof” is a pretty good indicator of an absence of integrity in an argument!) The goal is to improve your argumentation and your thinking. Finality is a goal best reserved for the grave.

Tim Wilson’s Arguments

For the sake of brevity I will paraphrase Wilson’s arguments here. While excluding what is irrelevant to these two arguments in particular, the paraphrase is pretty accurate, as is easily determined by reference to the original. Also, I number the assertions and put them in blockquotes, although they are not literal quotes.

Argument 1: The New Rule Does Not Limit Free Speech

(1) The Department of Prime Minister and Cabinet has released new social media protocols. (2) The protocols limit the capacity of public servants to make political statements that are harsh or extreme in their criticism. (3) Employment codes are not law, and (4) so cannot constitute a legal limit on free speech. (5) Defending the universal human right of free speech is about the legal limits of speech.

Argument 2: The New Rule Is a Reasonable Employment Rule

(1) Codes of conduct provide an important civilizing role in filling gaps left by the law. For example, (2) codes of conduct restrict homophobic behavior. (3) Employment codes are not limiting, (4) since an employee may at any time resign. (5) What is specifically precluded by the new code is harsh and extreme criticism in areas that are related to their work.

I will apply the AA process only to the first argument, in order to keep this illustration of method reasonably short and clear.

Step 1: Clarify Meanings

Tim Wilson begins his post by pointing out that we should know something of what we talk about prior to opening our mouths: “Before anyone screams ‘free speech’, they should actually know what they are talking about.” The implied criticism of his critics, that they don’t know what they are talking about, is nowhere substantiated by Mr Wilson. However, the challenge is worth accepting.

So, what is free speech? Literally taken, it might be a right to say whatever you have the urge to say. In practice, however, as Wilson and every other commentator has noted, there are accepted limits upon speech. So, whatever right to speech we may be referring to is, and always has been, a limited right.

Freedom of speech as a right certainly has been recognized from long ago, for example, in the English Bill of Rights of 1689 and before that in ancient Greece, as John Milton noted in his famous defence of free speech, in Areopagitica. Free speech is recognized as fundamental in the Universal Declaration of Human Rights. It is notable also that the very first amendment in the Bill of Rights in the United States explicitly protects freedom of speech and a free press. Every democracy depends upon a free debate over public policy and principles, so attacks upon free speech are indirectly attacks upon democracy as well.

Nevertheless, it is perfectly well and widely accepted that there are proper limits on free speech. Speech that is likely to be hazardous or harmful to others is generally prohibited. Defamation and libel are also generally prohibited. And contracts may prohibit certain kinds of speech, such as the disclosure of proprietary information, as Wilson specifically notes. So, there is a real question whether Wilson’s defence of Abbott’s new rules is legitimate or not. Any reflex dismissal of it is a wrong reflex.

I have no particular unclarities about Wilson’s language, although I will return to some of the semantics later. I will also note that Wilson makes no distinction between “legal limits” on speech and “limits” on speech. That is, his post equivocates between them, attempting to support the claim that there are no limits imposed on free speech by Abbott’s actions because they do not impose any such limits in law. That inference is specious nonsense, of course.

Some Background

There is a relevant background to this issue. Tony Abbott and his government now have a track record of restricting freedom of speech and the flow of relevant public information in ways that at least suggest they fear public scrutiny of their actions. When the ABC reported on evidence of the mistreatment of refugees by the Royal Australian Navy, Abbott labeled them “Un-Australian”; many of his ministers also condemned the ABC, and they have suggested its funding and role should be curtailed. On any matters connected to dealing with refugees, Border Protection Minister Scott Morrison routinely invokes the cover of protecting military “operations” in refusing to address many questions, perhaps out of fear, for example, that smugglers might learn whether they have sent a boat to Australia. It seems likely that putting border protection and the handling of refugees under military control was, in part, designed to restrict public knowledge of the government’s activities. But, of course, issues of sovereignty and support for international law are pretty central to the public policy of a democracy. If anything is Un-Australian, it would have to be suppressing public debate about public policy.

Step 2: Identify Propositions

Already done.

Step 3: Graph the Argument

Argument 1 might be graphed as: A1

This shows its radical incompleteness. (1) is just setting context, identifying what protocols are at issue. The conclusion here is implicit, so the graph is quite fragmentary; the conclusion is in the argument’s title, so just numbering that (6) and making obvious connections we get a much better representation of the argument:A2

A few observations on graphing are in order. This graph is just a quick Google hack, but there are more sophisticated tools for the purpose, such as Austhink’s Rationale. That tool will give you some syntactic sugar that you may find useful; for example, it colors supporting links green and contrary arguments red. Here I’m inventing two small pieces of syntax: a dotted line for context setting that’s not really part of the argument; arrows joining together to show that a conjunction of premises is required for support. To be sure, (2) is also required for the inference to (6), but it is less closely associated with (4) and (5). If you have a disjunctive argument, such as “X or Y → Z”, you might want to show that clearly as well, using color or dotted lines, etc.

Step 4: Make it Valid

We now tackle the argument one subargument at a time. (3) → (4) is presumably not controversial, but it is certainly not, strictly speaking, valid. Dr Neil Thomason likes to invoke his “Rabbit Rule”: you can’t pull a rabbit out of a hat, unless it was already in there. The premise (3) doesn’t even mention limits or free speech, so it cannot be valid to conclude anything about them, as (4) does. What we need is some innocuous hidden premise to get us there, such as, (A) only laws can constitute legal limits on free speech. Since (A) is innocuous, this hasn’t revealed anything revelatory; but it is all part of the AA process.

(2) (4) (5) → (6) is much the bigger problem. First, let’s just look at (4) (5) → (6) in isolation. We have a Rabbit problem here as well: the conclusion says the new rules don’t limit free speech, whereas the premises are about legal limits only. This is not my artifact: the equivocation lies in the original, as you can see for yourself. We shall have to fix it, by some kind of bridge, that will allow a valid inference. A plausible candidate would be: (B) that which does not constitute a legal limit on free speech does not constitute a limit on free speech. From this it validly follows that there is no limit on free speech, given the premise that the new APS rules do not constitute a legal restriction on speech. There is, however, an immediate problem with (B), which is that it is obviously false. When you appear to be compelled to introduce an obvious falsehood as a missing premise, that tends to be a bad sign. There is no help to be found in Wilson’s post, since he there recognizes no distinction between legal and other limits on speech, sliding over any problem. This is where (2) comes in, at least in my thinking. It (and related text, that I have not copied) appear to be suggesting that employment codes can be legally relevant, in particular by violating the law. The laws that might be both relevant and violated here are not gone into, but the qualification that it is only harsh and extreme criticism that is being suppressed suggests some such qualification. Therefore, I shall adopt (B’) as the missing premise: (B) so long as it only limits harsh or extreme critical speech. The subargment in question then becomes (with some modest rephrasing):

(2) The new rules limit employees’ political speech that is harsh or extreme in its criticism. (3) Employment codes cannot constitute a legal limit on free speech, if they only limit harsh or extreme criticism. (5) Free speech is about the legal limits of speech. (B’) That which is not a legal limit on free speech also does not limit free speech, so long as it at most limits harsh or extreme critical speech. (6) Therefore, the new rules do not limit free speech.

Our graph at this point is:


I accept this as valid, or near enough, but that’s hardly the end of the story.

Step 5: Counterargue

Tim Wilson’s suggestion that the right to free speech only concerns limits in law is one key issue. This certainly does reflect, for example, the first amendment to the US Constitution, which restricts what laws the US Congress may make. It also reflects the underlying motivation for many declarations about human rights in general and free speech in particular; the underlying motivation is to not tolerate governments which attack such freedoms. What it does not reflect, however, is the ability of governments to attack freedoms indirectly and implicitly. A government may, for example, attack free speech by financing those who openly support its policies and deny financing to those who openly criticize its policies. While this may not violate explicitly the Universal Declaration of Human Rights, taken to an extreme it can be just as effective and pernicious as government actions which do openly violate that Declaration. More directly, “limiting free speech” is ordinary English, not legalese: Tim Wilson has neither the right nor the ability to arrogate its meaning for his own purposes. Telling people they cannot say something is limiting free speech, whatever pathetic spin Wilson cares to put on it. The only legitimate issue is whether the limitation is warranted or not, and on that count also Wilson is very much on the wrong side.

Wilson has gone to some pains to present his view as quite moderate. The only limitation of speech is that by an employment contract, and that speech must be extreme or harsh before any cause to dismiss can be found. So reads Wilson’s blog. And no ordinary person would expect to use extreme or harsh criticism of their employers in public and get away with it. Hence, the objectors must just be more of the chattering classes, of the latte-sipping variety. But there are a few points Wilson neglected, best considered with a latte in hand.

First of all, there is pre-existing policy that current APS employees might have a reasonable expectation of being enforced. The APS employment policy states:

It is quite acceptable for APS employees to participate in political activities as part of normal community affairs. APS employees may become members of or hold office in any political party.

Clearly, it follows from this that criticism of the existing government by opposition members who are a part of the public service is legitimate and protected, whether distributed via social media or otherwise. Of course, that does not mean that “harsh” or “extreme” criticism must be protected. Or, then again, perhaps it does. Presumably, since public servants are encouraged to run for public office, they are not meant to be severely handicapped relative to the incumbents they run against. But under the new Abbott rules that is the case: Abbott and other incumbents can be as obnoxious, harsh or extreme as they like in attacking their opponents, but if their opponents are also public servants, they cannot return in kind. If I were a public servant campaigning against the likes of Abbott, I would first resign. But that is irrelevant: the fact remains that Abbott’s rules clearly violate the intent of the existing code of conduct by restricting otherwise free political speech. Unfortunately, matters are even worse than what I have just written.

The exact wording of the new rules is, in fact, relevant. Specifically, they restrict opinions posted in social media, whether acting professionally or not, which are “so harsh or extreme in their criticism of the Government, Government policies, a member of parliament from another political party, or their respective policies, that they could raise questions about the employee’s capacity to work professionally, efficiently or impartially” (my emphasis). This covers, for example, scientist public servants who may want to raise questions about George Brandis’ preposterous declamations on the climate change debate. Oh my! Were I a public servant, perhaps I would be fired tomorrow for that last sentence! It is certainly true than I hold my current political masters in contempt! Nevertheless, the standard being set here for public servants being called to account is simply absurdly low. Under what circumstances can the pack of Brandis, Abbott, Morrison, Hockey, Turnbull and the rest possibly raise questions about the professionalism of those who oppose them? I will leave it to your imagination. But if you are a public servant, you will have no difficulty answering the question and keeping your mouth firmly shut. Which is just what your masters want.

Steps 6 and 7: Consider Alternatives and Evaluate

I will illustrate these steps in the negative, by omission. As pure pedagogy it is not necessary, since it repeats the first five steps on new arguments; as a positive example, it may be necessary. I plead my case as a matter of time: I’ve taken a fair bit to do this much and need to get to other things. Perhaps, in future I shall return to this and complete it, however. Also, perhaps reader comments will help fill the gap.

I will, however, quickly comment on Wilson’s second argument. Codes of conduct may either be civilizing or barbarous. This new code might count as civilizing were the enormous leeway in its interpretation taken away. Wilson’s implicit suggestion that they are limited to work matters is at best misleading, however, since both political campaigns and scientific publications are explicitly mentioned as being circumscribed by the new rules. That the rules do not take away an employee’s right to quit work and face unemployment hardly means that employees’ rights to free speech are thereby unimpaired. A kidnap victim’s “right” to refuse an order and thereby get shot in the head doesn’t make such an event the victim’s fault, nor does its availability restore the victim’s freedom. Abbott’s rules demonstrate, as if further demonstration were needed, that all of his impulses are against transparency and freedom of speech. Barbarity is the New World Order.