WARNING: VERY LONG POST
In a recent court decision, conservative commentator Andrew Bolt was found guilty of breaching the Racial Vilification Act (Eatock vs. Bolt, see http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html ).
From the classical liberal perspective, the good intentions behind the Racial Vilification Act do not justify the existence of the Act; Free Speech is an absolute right which is only bounded by fraud (for example, in the case of actual defamation) and coercion (i.e. making threats of violence or similar forms of extortion).
I am not a viewer of Andrew Bolt, although in full disclosure I did once send him an email which corrected a philosophical mistake of his; he accused Postmodernism of being Metaphysically Subjectivist (i.e. people’s minds literally remake reality). I believe that to be mistaken since Postmodernism is Epistemologically Subjectivist, typically on philosophical grounds derived from German Idealist thought. This has been my only interaction with his work in the past, and I know little about him. Although I was pleasantly surprised when reading his Wikipedia page that he’s an Agnostic rather than a religionist.
But the reason for this post is that I found a specific comment about the Bolt case interesting from the perspective of political philosophy.
Commentator Brian F. McCoy argued that the ultimate issue in the Bolt case wasn’t freedom of speech. He identified the core issue as “freedom of identity” (see http://www.eurekastreet.com.au/article.aspx?aeid=28512).
What a fascinating concept.
“Identity” in the context of the case was referring to social identity or the groups with which one identifies.
The following article is not so much a deliberate argumentative essay per se. Rather, it is a set of commentary on a series of interconnected issues raised by the Bolt affair. In it, I will cover epistemological and philosophical considerations relating to the concept of “social identity” and I will also discuss the various analytical frameworks and assumptions that are used when dealing with the concept. Ultimately I will launch into a discussion of Brian McCoy’s “freedom of identity.”
First, let’s review the basic facts. Bolt published several articles which dealt with the subject of various individuals with mixed ethnic heritage (which in all cases included Indigenous Australian heritage) choosing to socially identify as Aboriginal.
As a hypothetical example, let’s assume someone has one English grandparent, one Japanese grandparent, one Indigenous American grandparent and one Saudi Arabian grandparent. This would make their ethnic heritage 1/4 each way. Let’s assume this person, in spite of this genealogical fact, identifies most closely as an Arab and participates in the cultures and traditions of this group (for instance, this person is most likely to be a Muslim).
Now, many readers of this blog may ask: “Why that specific portion of your ethnic background? Why not this portion? Why not these other two portions? Or why not identify partially with each?” But the purpose of this article isn’t to assess these claims but rather analyze how they are being discussed.
This phenomenon isn’t unique to ethnic identification. It exists quite heavily in other areas, such as sexual identity. Let’s take a real life example; horror and dark fantasy author Clive Barker (who, incidentally, wrote and directed one of my favorite films of all time, the original Hellraiser). Barker socially identifies as a gay man and is married to another man, however he has freely stated that he has had girlfriends before and cannot rule out ever having another one.
If by “gay” one means “sexually attracted exclusively to members of the same sex and not attracted to any members of the opposite sex” then Barker is technically not gay; on the Kinsey Scale he’d be rated either a 4 or 5 and hence be a predominantly-but-not-exclusively-same-sex-oriented bisexual.
Speaking of Alfred Kinsey, he argued that the actual sexual conduct of most people was not exclusively heterosexual but rather predominantly-heterosexual bisexual (this category included Kinsey himself), these days referred to as “heteroflexible.” Even if we are to bring a healthy skepticism towards Kinsey’s statistics, there seems to be an inevitable conclusion that a substantial number of people that socially identify as heterosexual aren’t exclusively heterosexual.
In other words, there are many areas in people’s lives where a “gap” exists between their social identity and the actual facts of their nature.
This isn’t necessarily a bad or malevolent thing; as I’ll explain further along, social identities are concepts or abstractions which tend to gather lots of varying connotations and notions which all get filed under the same label. Additionally, even “harder” concepts like ethnic heritage are simplified during the process of abstraction, causing a loss of information. Finally, the process of abstraction is one of compare-and-contrast, which means how something is defined within a specific context will be influenced by the other things around it within that same context.
Epistemology 101 – In An Article Written By Me, You Knew This Was Coming
And so we commence a detour into the delicious happyland of the Problem of Universals (yes, I know, another Randian trope, the dead horse has been flogged again and again, groan).
Yes, this is actually relevant! Social identities are universal nouns/adjectives; basically they are words denoting categories which we put multiple concrete things into. “Dog” and “Cat” are universal nouns. For that matter, so are ethnic descriptors.
Let’s take, for example, a series of tribes in some area of land. In coming up with their concept of ethnicity, they simply compare and contrast their own tribes against other tribes.
Then in come some foreigners that look so vastly different to the members of ALL the tribes (different facial structures, skin tones, etcetera).
Let’s assume these foreigners are from a seafaring people that love exploring different places. To them, all the tribes of this new land look the same without careful study, and so said foreigners subsume all the tribal ethnic categories under one descriptor.
At the same time, the tribesfolk are likely to notice that, when contrasted against such very different people, all the different tribes which used to look remarkably different now have more in common with each other than previously thought.
What we have here is people performing the process of abstraction from different contexts. The seafaring people have a wider context than the tribespeople because they’ve seen a wider variety of types of peoples, however as a result they use much more coarsely-grained classification systems. In other words, their categories are more abstract; they omit more ‘inessential’ information and thus embrace wider groups, but at the same time the categories are more general and less nuanced and brush over factors like inter-tribal conflict which would necessitate less abstract and more finely-grained classification.
In other words, whilst entities are naturally differentiated from each other, they are only experienced as entities of a specific type when an observer performs a process of abstraction where the observer compares and contrasts entites with each other and is thus able to comparatively measure “clusters” of relative similarity vs. relative difference. From this, the observer actively categorizes entities. This means that “essence” is not a metaphysical matter as both Plato and Aristotle believed (although their own arguments for essentialism do differ from each other) but is rather an epistemological and contextual matter.
For more info, see Ray, C (1998), Identity and Universals: a Conceptualist Approach, Electronically published by Enlightenment, http://enlightenment.supersaturated.com/essays/text/carolynray/diss/
This approach to the Problem of Universals is called “Empirical Conceptualism” and essentially argues that Universals are mind-dependent abstractions formed by sensory measurement of empirical data (this approach contrasts with Platonic Essentialism (or Platonic Realism or Transcendental Realism), Aristotelian Essentialism (or Aristotelian Realism or Moderate Realism), Rationalist Conceptualism, and Nominalism).
Race And Universals, or “Make The Damn Philosophy Stop Already!”
Let’s put these philosophical abstractions into the real world. How does the manner in which one deals with concepts of ethnicity change how one approaches these issues (yes, I promise, this actually sheds light on the Bolt case!)?
The approach I outlined in the preceeding section is the Empirical Conceptualist way to approach ethnicity as a concept. But how do each of the other approaches work?
Let’s start by trashing Plato (where else?). Platonic realism treats ethnicity as a form above and beyond this world and above and beyond all the people that are said to have this ethnicity. Objects in this world try to “participate in the form of” their relevant form, and the closer they come to it the “better” they are at being that kind of object (i.e. a good sword is a sword that is very competent at participating in the form of the sword).
So let’s apply this theory to ethnicity. As stated above, in order to be X, one must be good at doing X-ness… to act in manner X-way is to “participate in the form of X-ness” and thus shore up one’s identity. Now, to most people (including me) this theory sounds completely ridiculous; “Plato must’ve been contemplating the form of acid when coming up with this idea!” But people actually handle many abstractions as if they were Platonic.
Let’s take the concept “real man.” In order to not just be male but rather a “real man” one must perform certain actions, have X physical characteristics and express them in Y manner, and any failure to reach these goals and continuously prove one’s capability of reaching them is punished with social emasculation and some level of moral condemnation. This is textbook Platonism (ironic how by “real man” what people really mean is “ideal man” (by a specific definition of ‘ideal’)). Plato might have been high as a kite but a relatively common concept is handled in a Platonic manner.
In the issue of race, let’s look at a phenomenon within parts of the African-American community. In parts of this community, there is a concept called “acting white” or “oreo” (named after the popular cookie; the symbolism should be obvious (“black on the outside, white on the inside”)). To quote George Mason University Economist and commentator on African-American issues Walter E. Williams, “A black student who speaks well, carries books and studies can be accused of “acting white” and find himself shunned and assaulted by other students” (http://www.thenewamerican.com/index.php/opinion/walter-williams/2912-black-opportunity-destruction ).
Williams is of course accused of being an “oreo” himself, but that’s besides the point. According to the concept of “acting white,” any attempt to improve one’s position that doesn’t involve the culturally-accepted career choices of what is considered to be “proper black culture” is treason, race-betrayal, and repudiation of what one is.
Thus, one’s identity is a function of acting in a specific manner; failure to do so is to place one’s identity outside the category and to in essence commit an immoral act (or to “go against nature”). This is again textbook Platonism; it depends on an eternal form of “proper” black culture to which everyone’s adherence must be evaluated and policed.
Next, we move onto trashing Aristotelian Realism. Aristotelian Realism believes that within every member of the category X, there is a real substance called the “essence of X-ness” which is responsible for each member of X belonging to the category.
In some respects, Aristotelian Realism is more benevolent than Platonic Realism because it lacks the built-in normativity of Plato’s approach. But it would be a mistake to think Aristotelian Realism as right, and this idea has indeed been disastrous when linked to issues of race and ethnicity.
Specifically, much of the discrimination towards ethnic minorities that has happened in the 20th century West is in part a product of this attitude.
Aristotelian Realism makes ethnic grouping innate and thus inflexible and rigid. It is something substantial inside you.
In and of itself, this is the kind of attitude which would collapse into “keep to your own kind” policies (such as ethnic separatism, xenophobia and the like). But when the biological-determinist racial supremacists came around, the results were catastrophic.
Recasting an Aristotelian “essence” into a biological one, and reducing all human actions down to products of genes, biological essentialism cemented racial categories in stone (and policy) and denied free will. If it is accepted that we are just products of our genes and have no individual agency, then we end up back in the land of methodological collectivism.
The third ingredient to this caustic intellectual mixture was a distortion of the theory of Evolution. The theory is meant to be applied to individual organisms (after all, they are the engines of variation and replication, and they’re the beings that get selected out!), but the biological essentialism and determinism resulted in a methodologically collectivist focus on races as a whole, especially when the selection mechanism came about.
We all know where this led. Eugenics and the 1920’s American Progressives, the Holocaust (to an extent since the Nazi view of race contained Platonic/Mystical elements), mandatory sterilization programs, and to debated extents the Stolen Generation. There are plenty of others.
Contemporary Western commentary about race and ethnicity issues is ultimately an attempt to exorcize the above Biological Determinist/Racial Essentialist/False-Darwinist framework. Hence why suggestions about biological differences (even at the level of very broad, statistical generalities) between ethnic groups are often considered “politically incorrect” (since these hypotheses may be construed as racially essentialist and biologically determinist). Given the bloody history that these ideas have been behind, it isn’t surprising that people want to keep these ideas buried at any cost (even if that cost happens to be the rights to free speech or freedom of conscience).
But what did the Essentialist frameworks get replaced with?
Social Constructivism, Baby!
Modern discourse about race has typically been the province of those that describe themselves as leftists. Whilst this term is slippery to define, I believe it is fair to say that leftists in general are strong proponents of methodological collectivism in the social sciences.
This is a rejection of the Enlightenment position of methodological individualism (upon which the Classical Liberal/Libertarian tradition is based).
With biological determinism, and all forms of epistemic essentialism, generally out of fasion, the left began to embrace a social constructivist view on race and ethnicity.
This is not surprising; various forms of social constructivism have always been prominent in leftist thought. Marxism for one advocated for a form of social constructivism centered around economic factors. Marxism also lacks any explicit endorsement of epistemic essentialism (although I’d argue the strict dichotomy between capital goods and non-capital goods requires some sort of essentialism to back it up, but I digress), arguing that even ideas are just products of relationships to the means of production.
Some important caveats: 1) I am not alleging that all racial discourse is Marxist; merely that there are some similarities between Marxist methodology and the methodology with which a lot of analysis of racial issues is carried out (more about that later), and 2) social constructivism is not an exclusively or inherently leftist idea, it is merely an idea that shows up in a lot of leftist thought.
Going back to Universals, the new discourse on race and ethnicity rejected essentialism of both kinds. Instead, it embraced a Nominalist position on ethnicity, which basically said that ethnic labels were just words with no necessary connection to empirical reality.
At first thought, it is ironic that the side of the debate that reduces ethnicity labels to “just words” would want to ban the words of Andrew Bolt.
But as stated before, the left have a strong attachment to methodological collectivism. This meant that there HAD to be some meanings in these “meaningless” ethnicity labels; their suite of analytical tools could only cope with collectives but they had to reject essentialism. How could they have their methodological collectivism whilst rejecting essentialism?
This is what social constructivism allowed. Now, it should be again restated that social constructivism is not inherently leftist or collectivist. Social constructivism can in fact be individualist (Ayn Rand, who was anything but a collectivist, accepted the proposition that some things were indeed socially constructed; she used the term “the man-made” and distinguished it from “the metaphysically given” to illustrate this point).
But the specific kind of social constructivism which was embraced managed to remain methodologically collectivist by treating individuals themselves, and the contents of their minds, as social constructs (just like Marxism but through a different means). It denies or severely limits the abilities of individuals to think for themselves, critically analyze ideas, or even shape their own identities. The meanings of the “meaningless” ethnicity labels became whatever subjective meanings were invested in those labels, and it is those subjective meanings which construct the identities of individuals.
Go Fouc Yourself
Probably the most influential thinker in this like of thought is French postmodernist Michel Foucault. Foucault himself was anti-Marxist and has inspired libertarians as well as leftists (see Dr. Thomas Szasz for an example), but his inspiration has mostly been towards the left.
Foucault was philosophically influenced by the German Idealist tradition (Kant/Hegel/Fichte/etc.) but took most strongly after Friederich Nietzsche. Where Nietzsche made a case for moral skepticism, Foucault broadened Nietzsche’s skepticism beyond the field of ethics.
Nietzsche’s argument in On The Genealogy of Morality was that morality is a product of a “Pathos of Distance.” In essence, people’s concept of “the good” is no more than a flattering self-portrait. “The good” is that which is “like us” and that which is not like us (i.e. “the other”) becomes the bad.
In light of this, Nietzsche confronts a fact; the moral philosophies of some people tend towards praising certain kinds of virtues, and the moral philosophies of other people tend towards having very different codes of virtue. Some moral codes tend to celebrate strength, joy, conquest, achievement, wisdom, adventure and creation, whilst other moral codes tend to celebrate weakness, patience, faith, humility, turning the other cheek, obedience and believe that pain and suffering bring redemption. He calls the first code of values “Master Morality” because it was (according to him) practiced by successful civilizations that conquered other people. He calls the second code of values “Slave Morality” because it was practiced by those whom were conquered.
Nietzsche argues that, basically, when Civilization A conquers and dominates Civilization B, it makes sense that Civilization A will come to celebrate their conquest and revere themelves as strong and powerful and worthy of their triumphs. Civilization B, on the other hand, will have wounded pride and thus craft a morality which says THEY are the true nobles, that their overlords are drooling monsters on the side of evil, and that one day they will have their revenge on their oppressors when justice is restored.
Nietzsche and Focault both shared this idea that socially-accepted moral concepts are essentially products of oppression, but they saw things differently. To Nietzsche, remaking morality is a way that the powerless get revenge on the powerful, by inflicting guilt onto them, by making them feel guilty for (what Nietzsche believes to be) their nature, and by robbing their lives of spiritual joy and moral confidence.
Foucault, on the other hand, reverses this. For Foucault, socially-accepted morality is yet another way that the powerful keep the powerless down (this is a similar argument to that made by the Frankfurt School of Marxist Critical Theory, but without the economic reductionism). So what controls socially-accepted morality? What convinces people about what is good and what is bad?
In accordance with methodological collectivism, Foucault doesn’t let individual will or thought have a role. So what does? Foucault’s answer may surprise, but it is a similar answer to that given by the Frankfurt School. Foucault answers that the “texts of society” perform the process of moral indoctrination.
Music. Art. Fiction. Nonfiction. Language. Video Games. You name it; if its a form of communication, it counts as a text of society, and according to Foucault it is these texts which determine the prevailing beliefs about everything.
To quote individualist-anarchist-feminist Wendy McElroy, describing Foucault’s position: “The most important factor in defining the human body and sexuality are the texts that are written and spoken about them. As a way understanding this point, consider the Victorian epoch of repressed sexuality in the late nineteenth century. A common approach is to look at its plays and literature, the songs and newspapers — in other words the texts of Victorian society — and to conclude that the texts reflect a repressed, sexually – horrified culture. Foucault sees exactly the opposite. He believes that the society reflects the texts” (http://www.wendymcelroy.com/plugins/content/content.php?content.73 ).
In brief, life imitates art and thus, if you control the texts of society you can re-engineer the society. Caveat: it is actually debated how strong the claims made by Foucault himself were (some would argue he’s merely saying the texts are an influence), but Foucault’s followers clearly ramped up the severity of his claims to the levels McElroy identifies.
Political Correctness. Censorship. Speech Codes. The Sapir-Whorf Hypothesis. The Misandrist-Feminist War On Pornography. All of it stems ultimately from a belief that by controlling the texts of society (including language) you can perform social engineering by altering the content of individual minds. It is no surprise that it was a member of the Progressive Left, a child psychologist named Leland Yee, who was behind California’s failed legislative ban on selling violent video games to minors. Many of the left’s intellectual traditions, such as Foucauldianism, can justify censorship just as easily as the Christian tradition.
Ethnicity, Identity and Speech
This, ultimately, is why Andrew Bolt’s work was targeted; Bolt’s work generated social text which in turn would construct people’s concepts of Aboriginal social identity, including the concepts of Aboriginal social identity that are embraced by people of Aboriginal ethnic heritage (in whole or part). Bolt’s work had the potential to define/re-define “Aboriginal-ness.” In the Foucauldian view of things, this is power; the ability to remake what society accepts as truth. And being defined by your oppressors is the Foucauldian view of powerlessness. This is what Foucauldians mean by “power-knowledge,” by manipulating what is accepted as truth one can hold monumental influence. One need not be a member of a Nietzschean conqueror-race in order to hold power, one merely needs to be a convincing myth-maker.
In the interests of charity, this isn’t necessarily as weird a conclusion as one might think on first sight (and for the record, I do think the concept of “power-knowledge” has some value when the idea is employed in a methodologically individualist fashion). Take for instance the left-right political spectrum, which defines ideologies on a one-dimensional continuum where one side (allegedly) believes in social freedom but economic controls, and the other side (allegedly) believes in social controls but free markets. The ideology of Classical Liberalism is thus defined either as on the same side of the spectrum as Hitler (if it is grouped under the category of “right wing”) or it is defined out of existence. And the totalitarian variants of leftism are portrayed as the “opposite” of Hitler, even when this was anything but the case. And the mere structure of the spectrum suggests that there’s an inherent trade off between social freedoms and economic freedoms. As many libertarians ever since David Nolan have asked, Cui Bono?
And this kind of postmodernist argumentation doesn’t always result in attacks on free speech. Nick Gillespie of Reason Magazine is a Postmodernist, albiet significantly less extreme than the followers of Foucault. Thomas Szasz, NYU Professor Emertius of Psychiatry, is a prominent libertarian thinker and was heavily influenced by Foucault’s analysis of psychiatry. Szasz’s book “The Myth of Mental Illness” argues that “Mental Illness” is merely Power-Knowledge; a semantically nonsensical category that exists purely to further the pretense that what really amount to personality quirks and/or problems with living are exactly the same as physical pathologies.
Irrespective of this, the Foucaldian methodology I am discussing (which is not used by either Gillespie or Szasz; both are consistent methodological individualists) clearly forms the theoretical framework under which laws like the Racial Vilification Act become favorable. Allowing people to engage in “hate speech” against various groups allows the hate-speakers to socially construct the concept (and hence the social identity) of the hated groups. This means that members of the Oppressor Class end up defining the very identity of the Oppressed Class, which in turn further oppresses the Oppressed Class even more.
The Bolt case is a clear example of this (according to the Foucauldian paradigm) – an Australian of European descent (i.e. member of the Oppressor Class) attempted to spark a discussion on what the proper criteria were for an “authentic” Aboriginal identity.
This brings us to an apparent paradox. The mainstream Foucauldian analytical framework is Nominalist and skeptical about knowledge as a whole and believes that concepts of social identity are basically subjective (and intersubjective) and need not have any relationship to reality. However, in a previous example I discussed the historically recent phenomenon by which some African-Americans employ a Platonic treatment of an “authentic” African-American identity (those African-Americans that don’t embrace the same ideals are called “oreos” and accused of race treachery). Why wouldn’t the Nominalist-Subjectivist-Foucauldian wing criticize the Platonists? I’d argue this again is a product of the taboo upon doing anything which might be perceived as a a member of the Oppressor Class trying to define the proper identity of members of the Oppressed Class. For a European Foucauldian to refrain from criticizing an African-American Platonist is seen as allowing the Oppressed Class to define their own social identity.
The Foucauldian paradigm may indeed reduce words to Roscelin’s “blowing of the voice,” but because subjective meaning is invested in these words they become (subjectively) meaningful. As such, according to this paradigm, those that control the construction of meanings behind the words will exert mind control over the people that use these words and label themselves with these words. Individuals and their beliefs will thus be socially constructed by the texts of society and thus individuals cease to have meaningful agency. Wordsmiths become mind-smiths.
Under this paradigm, acts of speech do become harmful; since people’s opinions of group X will be socially constructed by the definitions, connotations and other ideas linked to group X, any group of people that advance a proposition that “group X is bad” therefore encourages other people to dislike and eventually attack group X.
This is the reasoning behind “hate speech” laws, speech codes and “political correctness.” The reasoning is, quite literally, hate speech causes hate crimes.
Freedom Of Identity, Freedom Of Speech and Isiah Berlin
This long round trip brings us back to the interesting notion I found in Brian McCoy’s previously-mentioned blog post; “Freedom of Identity.”
Again, a very interesting and curious notion.
We already know that “Identity” here is being used to mean “Social Identity” or “how one labels oneself.” There are multiple kinds of social identity, from the ethnic/racial to the sexual to the subcultural and various other categories too. As stated back in the introduction, social identity isn’t necessarily a perfectly correct descriptor of the individual in question (for instance, Barack Obama socially identifies as black, but he has mixed ethnic heritage including both African and Caucasian ancestry). The reasons any specific individual embraces a specific social identity are likely to be numerous, complex and contextual; in short, if you want to know why X calls themselves Y, ask them.
So what does “Freedom of Social Identity” actually entail? What does it mean? What assumptions are behind it? And how can the speech of Andrew Bolt threaten it?
Let’s begin with the meaning of “freedom” or “liberty” in politics. Isiah Berlin’s Two Concepts of Liberty remains to this day the most informative work about the common meanings that “liberty” carries. Berlin argued that the Classical Liberal tradition defined “liberty” as what he called negative liberty. If one has the negative liberty to do X, this means that no individual, group thereof or institution (including the State) is allowed to start the use of violence, fraud or threats thereof against you in order to stop you from doing X. Taking this to its full conclusion would grant every individual the negative liberty to anything they wish as long as it does not involve starting the use of violence, fraud or threats thereof.
As such, a Freedom of Social Identity from a Classical Liberal/Libertarian perspective (i.e. when conceived of as a negative liberty) would imply that all individuals have the right to embrace any social identity they wish to, and no individual, institution or group can use violence, fraud or coercion to stop this. Others may still, however, attempt to use persuasion to convince people to adopt or reject any specific social identity and they may make whatever moral evaluations they wish (pro or con) about any other specific person’s social identity.
What Andrew Bolt said in his articles may have been tasteless and offensive race-baiting (according to some), or it may have been fair comment about whether or not some people have carefully calibrated their social identities to make it easier for them to rent-seek (according to others). Certainly it is fair to say (and Bolt has conceded that it is indeed the case) that there were some factual errors in the reporting he made. But did Bolt’s words deny anyone the negative liberty to social identity?
For an act of speech (which is by definition not an act of violence in and of itself) to violate the negative liberty of others, said act must constitute either coercion (i.e. threats/”fighting words”) or fraud (commercial deception, defamation). It is fair to say it didn’t constitute the former, but what about fraud?
I am no expert on defamation law, and many libertarian legal theorists are divided over the proper way to define and deal with defamation. I think that a clear-cut example of defamation that should be illegal would be a gossip magazine making knowingly false accusations about person X which can be reasonably expected to make most of the magazine’s readers instantly think person X is a horrible/evil/vile/depraved person (for example: “Celebrity X snorted meth from between the breasts of a crippled teenage prostitute, and didn’t even leave a tip”). But in real life, defamation cases are rarely this clear-cut and I absolutely concede I don’t have sufficient experience with the topic to propose a libertarian approach to defamation. That said, I will say that I think at least some kind of defamation law is a consequence of the prohibition of fraud and thus is consistent with the Classical Liberal tradition (I’d say the same about privacy laws; private property and rights to consensual sex upon said property as well as the notion that the matter of abortion is between a woman and her obstetrician are all logically dependent on the existence of a sphere of privacy).
Irrespective of the position on defamation laws, the Bolt case wasn’t handled under defamation laws. Rather, it was handled under the Racial Discrimination Act. I’m tempted to suggest that perhaps the standard of proof for defamation was much harder to reach than the standard of proof under the RDA. According to the summary of the case (http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html ), the claimant needed to establish that “it was reasonably likely that fair-skinned Aboriginal people (or some of them) were offended, insulted, humiliated or intimidated by the conduct” as well as “that the conduct was done by Mr Bolt and the Herald & Weekly Times, including because of the race, colour or ethnic origin of fair-skinned Aboriginal people.” As I am not sufficiently familiar with defamation laws, I am not sure how the Australian standard for defamation compares to the standard of the RDA, but since a legal representative would attempt to make the best case possible for their client, it makes intuitive sense to assume the representative believed that the client’s best chances were served by appealling to the RDA rather than defamation law. And even then, would the best possible defamation case against Bolt pass an hypothetical Classical Liberal defamation law? This is yet another question entirely.
I lack the required legal expertise to make a definitive judgment here. Suffice it to say, whilst I do not believe it to be a priori impossible that a reasonable case could potentially be mounted that Bolt’s articles may have infringed the negative liberty of certain people to a specific social identity (although in order to do this, they’d have to pass a hypothetical standard of defamation that’s compatible with Classical Liberalism), I am extremely skeptical that such a case could be convincing.
But there is a second concept of liberty; one which poses a far lower burden of proof upon those that believe Bolt violated people’s Freedom of Identity.
Isiah Berlin referred to this second concept of liberty as “positive liberty.” If one has the positive liberty to do X, this means that you have an entitlement to the ability to perform X; if circumstances of any kind render you unable to perform X, then this imposes an obligation upon other individuals (or groups thereof, or institutions) to enable you to perform X. For instance, if you have a positive liberty to medical care, this implies that if you cannot get medical care (can’t afford it, or don’t have nearby doctors, etc) then other people will become obliged to enable you to get it.
For practical purposes, positive liberty generally requires the State; whilst voluntary charity can quite clearly enable many people, voluntary charity lacks an enforcement mechanism to make people respect their obligation to enable those that lack the positive liberties they are entitled to. This is a massive departure from the Classical Liberal tradition, which sees the State (and the power of violence that it wields) as the primary threat to freedom; the idea of positive liberty recasts the State as a liberator. Positive liberty also forces some people to perform some specific actions (in order to enable others), whereas negative liberty merely prohibits some specific actions against others.
So if we are to talk about “Freedom of (Social) Identity,” what would this imply if we were to characterize this specific liberty as a positive liberty?
An example may be instructive. Let’s take the following hypothetical; a young woman growing up in a small religious country town discovers over time that her sexual desires are exclusively for other women and she never experiences sexual desire for any men. Her family are fundamentalist evangelical Christians that believe to engage in any homosexual act is an abomination in the eyes of God and if committed even once then the people involved are inevitably damned to hell for eternal spit-roasting, eye-gouging and fingernails-being-ripped-out-with-red-hot-pliers.
Let’s also assume (for the purposes of the argument) that the most sacred tenet in this faith group is a belief in absolute nonviolence, either directly or through the political process, even against the most heinous of sinners. Let’s also assume that the people in this country town are actually consistent with their own beliefs (especially on this matter).
This would mean that our young woman would indeed have the negative liberty to embrace a Lesbian sexual identity. No individual or institution in this town would stop her from coming out, labelling herself “Lesbian” and acting accordingly. Her family would probably abandon her and she’d be considered a moral monstrosity, but by a strictly negative definition of liberty she does still have Freedom of Identity.
Caveat: My hypothetical “NIOF Fundies” example depends on two things, 1) that threats of eternal torture in hell, to a religious person brainwashed with these beliefs all their lives, would not constitute coercion (personally, I’m inclined to think this MIGHT have a status approaching a credible threat to the people that are threatened, but if I were to accept this I’d essentially be arguing a large number of Christian churches are initiating coercion on their own followers and this belief has some scary consequences for issues like freedom of conscience and freedom of religion… I’d really like to hear from anyone here that has been raised in the Fundy tradition what they’d think about this topic), and 2) that disinheriting children is not fraud (and I basically agree that disinheriting children is not fraud, but anyone that wishes to bring an argument against this is welcome to do so).
But whilst this hypothetical young woman clearly has the negative liberty version of Freedom of Identity, she clearly lacks the positive liberty version. Her environment around her isn’t going to enable her to embrace a Lesbian identity (or, for that matter, any other kind of nontraditional sexual identity label should she prefer). Indeed her social environment and the institutions within it strongly discourage her from doing such a thing. People at school talk about “evil people that go to hell for being queer” and describe San Francisco as “New Sodom.” The local school board has banned any discussion in sex ed classes of any sexuality besides lights-out-missionary-position-heterosexual-reproduction-within-monogamous-marriage. And every Sunday she goes along to Church (she doesn’t want to raise suspicions) and gets told over and over again that if she even thinks about having sex with a woman, she’ll go to hell and be sewn into a Human Centipede. Probably between two men too, since Hell apparently likes ironic punishments.
Hence, negative Freedom of Identity without positive Freedom of Identity.
Dispensing with hyperbolic hypotheticals; a positive liberty to social identity is to have an environment which enables you to openly embrace a social identity. This goes beyond stopping anyone from beating you up/killing you/stealing your lunch money/etc. for your social identity, because there are more factors than violence which prevent you from openly embracing said identity.
For instance, if nasty comments about the group you identified with are made on a regular basis, that would make it less easy to openly embrace that identity.
Multiculturalism (actual ideological multiculturalism, not the casual use of the term) strongly emphasizes this idea of a positive liberty to embrace one’s own culture. According to Multiculturalism’s theoretical foundations (which I strongly disagree with), people are socially constructed by their culture (to the point where they don’t have a self independently of their culture; their culture is constitutive of their selves) and are thus happiest when with their own authentic culture. As a result, human happiness requires the positive liberty to live according to one’s own authentic culture. This, naturally, is much easier to do in the presence of multicultural festivals and the absence of hate speech.
It should be noted that there ARE ways to provide positive liberties through non-statist and voluntary means, so we libertarians shouldn’t immediately assume that ANY desire to increase positive liberties is automatically a Statist plot to destroy free market classical liberalism. But I believe, after all of the above has been taken into account, it is clear that Brian McCoy’s concept of “Freedom of Identity” is that of a positive liberty.
Except in cases of legitimate defamation (which constitutes fraud), words cannot restrict the negative liberty of people to embrace a specific social identity. Even mean, hateful abuse can only impact the positive liberty an individual experiences.
But into this worldview, let’s introduce the Foucauldian Social-Constructivist paradigm. In this paradigm, social identity is malleable and up-for-grabs but generally the ideas are controlled by socially dominant classes and used to oppress and further secure dominion over everyone that falls outside the dominant group. The only way to end this is to prevent the Oppressor class from being able to criticize or discuss any elements of the social identities of groups other than their own; the Oppressed group must be the only permitted participants in the discourse surrounding their social identity. Since all individuals are just social constructs determined by prevailing trends in discourse, words become weapons and tools of social control.
This results in a stunning conclusion; that if you accept the Foucauldian, methodologically collectivist, Social-Constructivist “discourse of domination” model, then Freedom of Speech in the Classical Liberal meaning of the term (as a negative liberty) becomes the greatest possible threat to the positive liberty version of Freedom of Identity. By letting all people, including those of the Oppressor Classes, speak freely about concepts of social identities including those of Oppressed Classes, you drown out the voices of the Oppressed and allow the Oppressors to redefine and reconstruct them. According to this worldview, to promote free speech as the solution to intolerant bigotry (e.g. the belief that “the solution to bad speech is more speech”) is to allow the fox to guard the hen-house.
Positive Freedom of Identity: For Whom?
One of the many appealling things about negative liberties is that they are founded on human equality. They always apply to all human beings at all times, and always impose the same level of obligations independent of situation. The outer limits of negative liberty are established by the Equal Freedom Principle; another indication of the fact that Classical Liberalism is truly egalitarian in the proper sense, irrespective of what the haters of freedom allege. Classical Liberalism enshrines equal treatment under law for all people and hence rejects the patronage systems of the past.
Positive liberties, by definition, cannot be spread so equally. They always have to be targeted towards specific groups, even if the group is “those that need to be enabled.” Part of the reason for this is that positive liberties are about providing means to allow people to reach specific ends; as basic economics says, our total means are limited and need to be prioritized. This also sheds light on another unpleasant fact about positive liberties; by definition they must infringe upon negative liberties because they legitimize forcing other people to act in a certain way (in order to enable others).
A significant problem with the idea of a positive liberty to social identity is that it won’t be spread equally. There are so many potential social identities of many different kinds. Not only that but people can easily adopt mixtures and hybrids of various social identities. For instance, the “Metrosexual” was an heterosexual male that adopted various elements of (what was labelled at the time) “gay culture.” And then we have the fact people can adopt multiple social identities in their lives depending on context. As Nick Gillespie and Matt Welch explain The Declaration of Independents (see Chapter 7), we are always producing and hybridizing and renovating and replacing social identities. Old “quaint little categories” of self-identification become redundant overnight. This pesky little fact, that it is individuals that construct their own social identities, is precisely what Foucauldian analysis denies.
In short, there will probably be more social groups in this world by the time you reach the end of this essay than there were when you started reading.
So, with all these new social identity groups springing up out of the ground, and only a limited amount of means to allocate towards the goals of allowing people to embrace their social identities, we are left with a question: to which social identities do we give positive liberty?
After all, every dollar spent on a Gay-Straight Alliance is a dollar that could have been spent on an Anti-Racism lecture. Or it could have subsidized a concert of a specific ethnic group’s traditional music. Or we could give it to the Emos, maybe it will cheer them up.
The answer is, like far too many answers, determined by the political process.
When politicians divide up the pie, they’re naturally thinking about doing something which will make their constituents happy, preferably happy enough to re-elect them so they can keep enjoying long liquid lunches at taxpayer expense.
Is it really a surprise that the more politically influential a particular social identity lobby group is, the more funding for positive liberty goes toward that particular social identity?
“Freedom of Identity” in a positive sense really only refers to additional positive liberty to embrace certain identities, typically identities with well-connected lobbyists. It is certainly becoming easier to embrace Aboriginal Australian heritage, as well as a Gay or Lesbian sexual identity, and in the United States it is getting progressively easier for African-Americans to embrace a notion of “authentic” black culture (note that none of this disproves or discredits the basic political causes here).
But in today’s world there are a hell of a lot more varying social identities to pick from.
In some respects, it may be an ironic unintended consequence of postmodernism; fear of having another person define your own individual identity (and thus control and limit you) has made people more eager to explore and create new identities. People have been self-deconstructing and self-reconstructing their own social identities for decades, in some respects outdoing the postmodernists at their own game. The followers of Foucault may insist on methodological collectivism, but actual people on the ground aren’t buying it. They’re customizing their own social identity every day, breaking down traditional norms, cliches and categories.
So again, why are some social identities deserving of positive liberty and some not?
It would be fair to say that it is harder to openly embrace some social identities than others, because some identities do receive discrimination of various kinds. It is easier to embrace being heterosexual than it is to embrace being homosexual. It is easier to reclaim and identify with one’s French ancestry than one’s Arab ancestry. But on the other hand, it isn’t necessarily fair to say that the positive liberty granted towards any specific identity is in all cases proportional to how much that identity gets discriminated against by the ignorant in society. Walter Williams again talks about how some Asian-Americans have experienced racism at the hands of some African-Americans (http://www.lewrockwell.com/williams-w/w-williams44.html ).
But in general, Asian-American groups don’t have the same level of organized lobbying, the same level of intellectual backing by the identity-politics-obsessed Academy, the same number of famous entertainers that can donate to political candidates, or the same (general) level of general willingness to engage heavily in politics.
Whether you like it or not, the level of positive liberty given to enable people to embrace any specific social identity is determined by the politicial system and thus is dependent on social identity groups willing to lobby and thus participate in the politicial system.
This creates an ironic result. The political system is by its nature built around creating broad-based coalitions that can dependably muster voting blocs in order to win elections. This means that certain favored social identities and their lobby groups have an incentive to maintain the stability of that identity, to strictly define that identity and to strongly insociate people into that identity. After all, if their ability to get State largesse is a product of how well they can turn out voters, then they’d better get a well-defined voting bloc under their control as quickly as possible.
In other words, the political distribution of positive Freedom Of Identity will inevitably create a situation where specific social identity groups will play the “us vs. them” game, seeking to ensure the loyalty of their voting bloc. It is in their interests to make individuals define themselves by the “officially sanctioned” version of the group’s preferred social identity and to prevent individuals from constructing their own social identities. This in turn will (over the long run) detract from individual’s positive liberty to construct their own social identity.
This is one reason why so many social identity groups will police the behavior of their members to make sure they’re embracing that social identity in the “proper” way; the example of educated black people being called “oreos” is one example. Another example is when exclusively same-sex-attracted men who prefer to embrace a relatively traditionally masculine appearance and demeanour are accused of being insufficiently gay, or guilty of “internalized homophobia.” And in both of these identity groups, it is a major social transgression to not support mainstream center-left and/or Progressive politicians.
And whilst it is fair to say that some social identities are being progressively more accepted over time, this certainly doesn’t happen with all social identities. Some social identities remain pathologized and stigmatized, if not by the State than by many people in society. But at times, hysteria over a specific social identity can easily spill over into State discrimination and we get the phenomenon known as the “moral panic.”
The moral panic over certain social identities tends to be confined to those identities embraced by youth; this is because many young people can’t vote and also because it caters to the protective urges of adults in the polity (to the political mind, this means “no potential loss, all potential gain”). Let’s take the example of the moral panic that happened in the wake of the Columbine massacre. The perpetrators of the massacre were members of a goth-esque clique; the “trench-coat mafia.” Apparently, Columbine high school was an identity politics breeding ground; there was a very strictly defined clique structure which included very specific dress codes (the “Jock” clique all wore white baseball caps) and, inevitably, cliques setting up heirarchies within their own clique and amongst all other cliques.
After the actual shooting, politicians moved in to capitalize. Conservatives blamed the lack of prayer in schools. So-called “Liberals” blamed lack of gun control. Both sides, however, happily blamed “goth culture,” with Tipper Gore’s campaign for music censorship getting a massive boon in the process. Evangelical ministries began to target goths, too, as high priority targets for salvation.
An interesting point to note is that the mainstream media, the “texts of society” at the time, all began spelling out critiques of (what they believed to be) “goth” culture. Don’t expect any analysis of the historical-artistic roots of goth music or anything, because it was far easier for the media and politicians to just Blame Marilyn Manson (whom the actual Columbine shooters didn’t even listen to in the first place; they were fans of KMFDM!).
If Foucauldian-esque identity politics had any actual resemblance to reality, you’d expect that having the MSM relentlessly define “goth” and hand the label out to anyone that wore a trenchcoat would in fact substantially alter the goth subculture. It didn’t, and Marilyn Manson didn’t suddenly become a goth act due to being labelled one.
But irrespective of this, the result of Columbine wasn’t an increase in tolerance or anyone being concerned about whether systemic inter-class oppression was responsible for diminishing the positive liberty of high school students to embrace a gothic social identity (which at least on its face sounds like a properly Foucauldian-type concern). Rather, the result was a crackdown on the liberties (both positive and negative) of pretty much everyone (even adults in a few cases) to embrace a gothic social identity. Colors like black even got banned, because obstensibly they were “gang paraphernalia” and showing up in a trenchcoat was basically an invitation to be cavity searched. An increase in the social stigma of such an identity was the natural result.
Thankfully, the moral panic over Columbine has completely run its course. But the overall point here is that any concept of a “positive Freedom of Social Identity” will inevitably create a situation of lobbying pressure groups and thus favor more politically expedient social identities, will unavoidably create incentives towards social identity groups favoring group loyalty and conformity and thus impede the positive liberty of individuals to construct their own social identity, and will only be used in a discriminatory fashion to promote some specific social identities.
Summary And Conclusion (Yes, Finally!)
The Bolt case caused a lot of commentator’s ink to be spilled. Social identity is anything but a simple matter, and is analyzed in many different ways. The proper methodology to unpack such inherently fuzzy and partly intersubjective concepts will always be a subject of intense academic debate.
Concepts of Race and Ethnicity are especially difficult to deal with since they’re heavily emotionally charged, delicate issues, and many in the West are justifiably afraid of falling into the Biological Determinism/Essentialism (derived from Aristotelian Essentialism) approach that characterized racial-ethnic discourse during the past and was used to justify horrors like State-backed Eugenics, biological social engineering, the Holocaust and plenty of other horrors.
But this Biological Determinism/Essentialism paradigm was replaced not with the Methodological Individualism of Martin Luther King Jr, but with a Social Constructivist/Determinist/Foucauldian paradigm which treats individuals as social constructs that manipulate social discourse to entrench power of their groups over other groups. This paradigm may be nominalist and subjectivist, but is no less methodologically collectivist than the Biological Determinist/Essentialist paradigm that has been rejected.
Because this Social Constructivist/Determinist/Foucauldian paradigm treats language as a tool of social control/engineering, it is inherently hostile to Freedom of Speech; to allow a member of the dominant group the right to make commentary on the social identities of oppressed groups is to allow the foundation of oppression to remain in place. Thus, laws like the specific section of the Racial Discrimination Act which Bolt was found guilty of breaching, are justified under this framework and “Freedom of Identity” becomes more important than “Freedom of Speech.”
“Freedom of Identity” as used in Brian McCoy’s article is almost certain to be meant as a positive liberty. Under the prevailing Social Constructivist/Determinist/Foucauldian framework, Bolt’s articles clearly infringe on the positive liberty of Australians of partly-Aboriginal mixed heritage to embrace an Aboriginal social identity.
But a positive liberty to social identity brings along many problems; for one, it will inevitably be a positive liberty to some specific social identities, typically ones that have skilled lobbyists and pressure groups speaking on their behalf and aren’t the subject of moral panic. As such, favored social identities will be those that provide good voting blocs. This creates a political-economic incentive for these social identities to police in-group behavior and to make sure people stick with the group (especially in political matters) which in turn circumvents the positive liberty of individuals to craft their own individualized social identity.
This article has not been a comprehensive analysis of the Bolt case itself. Rather, it is a series of interconnected reflections; “food for thought” on a group of interconnected issues raised by the case. Naturally, I do not accept the idea that people should have a state-provided positive right of Freedom of Identity. But the notion does make an interesting subject of discussion.