Disclosure: Andrew Bolt is a part of my extended family, not that I’ve even met him in person. There’s not much more to it than that.

Over at Metamagician and the Hellfire Club, Russell Blackford ponders the state of discussion about freedom of speech in Australia, following the result of the recent case of Eatock vs. Bolt. I tend to think the discussion has been pretty dismal.

First of all, let me say I don’t feel at all sorry for Andrew Bolt.

I think that the article in question that sparked the case was reprehensible. Bad journalism. Lazy with the facts. Defamatory.

The legalities of the case aside (details of the act, potential for establishing precedent etc.), in terms of consequences, I don’t think Andrew’s got much to complain about. He’s not had to withdraw the article from online publication. He’s still out there banging on about the same stuff as before. All the Herald Sun has been ordered to do is to publish a correction to the details that are known to be factually incorrect.

The Herald Sun is paying the legal fees, not Andrew. The Herald Sun is no doubt getting a lot of attention over all of this. Really, it’s hard to see this as not being a PR exercise for News Limited, who’ve been generating and manipulating controversy to their own ends for a very long time (as recent news attests to).

A case of legal fees tantamount to advertising costs.

I’m agitated by the hypocritical News Ltd line, that what we’re seeing here is the birth of some kind of martyrdom to political correctness. This from the stable who remains silent while academic Julie Posetti is currently left waiting for another two months, under threat of curious defamation allegations brought by The Australian’s editor-in-chief, Chris Mitchell.

Honestly, go and have a look at this article, while paying attention to the rotating promotional device in the top right hand corner. Reading Kemp’s article makes it all the more laughable.

Irony, your name is News…

As Blackford points out, Bolt has form on special prohibitions against free speech for artistic expression when it comes to Bill Henson. (It’s also a curious inversion, that David Marr should author a book defending Henson’s freedom of expression, while being so quick to decide that Andrew Bolt’s freedom of expression wasn’t to be concerned about).

I could go on. I’ve been reading these articles since the verdict, and the hypocrisy and in-house double standards have been mind-blowing, appalling even.

Then there’s the honest, genuine issue of free speech, which is often either being overlooked, or sidelined in fits of sanctimony.

The point of this is not that nothing should have happened, that Bolt’s antics shouldn’t have had consequences, not even legal ones. The concern is, and it keeps getting (deliberately?) overlooked, over and over again, that the threshold in the Racial Discrimination Act for what construes a transgression is perhaps set too low (‘offense’ rather than ‘harm’ as in defamation law), and the terminology is too vague (what precisely is meant by ‘offense’?)

Perhaps if procedural concerns hadn’t influenced options the way they had, perhaps if Bolt were instead taken to court on grounds of defamation, the result would have been much the same (the judge said as much). I don’t think people with free speech concerns like Russell Blackford, or Legal Eagle, would have had quite the same concerns if things had proceeded down such a route.

And I don’t see the expressed concerns being sated by mere mention of the judge’s capacity to manage balancing freedom of speech with just consideration of the nature of the offense. The concern seems to me, not that the balancing act was or was not well measured, but that there was too much leeway given to the judge (and to any judge hearing such a case) in the first place.

Is nobody thinking of the potential for this to backfire? Surely if Bolt’s attitude to ‘Welcome to Country’ is any indicator of the mood amongst the white-right-and-in-large-print, there’s the motivation for this to happen.

Consider some context from overseas…

‘During the year in which Michigan’s speech code was enforced, more than twenty blacks were charged – by whites – with racist speech. As Strossen notes, not a single instance of white racist speech was punished.’

(‘Critical Race Theory and Freedom of Speech’, The Future of Academic Freedom, Henry Louis Gates Jr., 1996.)

The racist speech in question causing offense rather than harm, on campus, during the period of Strossen’s campaigning against the speech codes with the ACLU in the late 80s, and early 90s. Yeah I know, those poor white college dudes getting it stuck to them by the ACLU once again. It’s political correctness gone mad… or something.

With the law as loose as it is, with judges left with a wide, vague scope in which to find balance, with Bolt (and ideological kin) trying to pass themselves off as the non-racist, unifying force in Australian identity politics, and with a right-wing media inconsistent about defending free-speech, I would have thought there’d be reason to worry about Aboriginal Australian activists potentially being targeted, and silenced with, the Racial Discrimination Act 1975.

Perhaps all it would take is a single scathing criticism, of a single privileged white male editor with an overblown sense of entitlement, by a single black activist, for a case to be made and for discussion to be shut down. Perhaps this, or perhaps any other heated discussion of race and racism, especially where disadvantage of one kind or another could also hinder participation. Consider who’s more likely to be able to afford expensive legal fees (tantamount to advertising costs).

I guess it could all depend on how well Section 18D mitigates against the vagaries surrounding ‘offense’, although by that point you could already be in court and the damage could be done. Just because someone can defend and win, notionally, doesn’t mean that all is right and well. People can be harassed with the threat of merely being taken to court – harassed into silence no matter what their prospects of winning the case.

(This capacity for silencing reminds me, from memory, of the ‘good faith’ defense against sedition in the amendments in the Anti-Terrorism Act 2005, where the accused is to provide proof of their own good faith).

I’ve seen Aboriginal activists get heated in discussion before, and make an error of fact or two, and in ways that would likely offend any number of delicate white people. But I wouldn’t want to see them harassed into silence over it. There is a right to a margin of error in these things, because ultimately error is unavoidable in public debate unless you withdraw from it altogether (which is the threat from this kind of thing we’re talking about).

The thing is, when it comes to error, 18D seems vague as well, the seemingly most relevant defense being…

… 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.

(Racial Discrimination Act 1975 – Sect 18D)

Fair by what criteria? Two out of three ain’t bad? And how do you test that an expression of belief is genuine? Dunk ’em in water and see if they sink?

(And I’m not sure about this – perhaps someone can fill me in – but in which way does the burden of proof lie in these particular matters. Is bad faith assumed until proven otherwise?)

There needs to be some room for error in these discussions (not that I suspect this would get Bolt off the hook – that was  some bad journalism), but the act seems to leave things wide open to be determined on a rather ad hoc basis.

***

Again, the point is not about denying Ms Eatock justice, or getting Bolt off the hook. The concern is the law, and how it could pan out in an array of cases, and whether this is a good thing.

Honestly, I’m a bit disturbed at how quickly people have been drawing such all-encompassing conclusions, so soon after the verdict. That, and disturbed by how quick some of them have been to dismiss, and misrepresent, and adduce all sorts of motives in other people, just for the expression of some degree of concern over some aspect of the case (and don’t get me started on the ‘absolute free speech’ strawman – precisely none of the people I’ve seen expressing considered concerns believes in absolutely, unqualified, unfettered free speech*).

The discussion of free speech in Australia is depressing. Our public intellectuals leading the discussion have been woefully disappointing.

~ Bruce

* I don’t believe in absolute free speech myself. There are exceptions to be made (Millian corn sellers etc.). I’m grateful when people realise this, or ask, rather than just assume.

Update: Prior to the final draft/publication of this post, but after the bulk of this article was written, Russell Blackford published his thoughts on the matter at length. Notably, he argues that 18D was interpreted too narrowly by the judge.