I’m going to contradict myself on Andrew Bolt. In a previous post, I defended Bolt’s right to free speech, as have so many others, in the face of his court case. At the time, my esteemed nemesis, the Slightly Disgruntled Scientist, came to a different view. Since the judgement, I find myself changing my mind, and I feel I ought to say something.
David Marr eloquently describes just how low Bolt actually sank, and also gives this important context:
The nine [who took Bolt to court] chose not to sue. They did not want damages but a public correction and a promise not to print such stuff again. So they brought an action under the Racial Discrimination Act, which has embedded in it a strong freedom-of-speech defence: insulting or humiliating people because of their race or colour is not unlawful when it is done “reasonably and in good faith” in pursuit of a matter of public interest.
Jonathan Holmes maintains that this is nonetheless about free speech, and discusses the relevant sections from the Act: 18C and 18D. Section 18C describes the kinds of behaviours considered racially intolerant and thus unlawful. Section 18D overrides it, making allowances for (basically) anything done, as Marr quotes, “reasonably and in good faith”.
Holmes is concerned that Justice Bromberg has set the bar too high, making 18D essentially useless:
[Justice Bromberg] specifically mentions, not just the wrong facts, but “the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides.”
In other words, if you want the protection of section 18D of the act when writing about race in a way that’s likely to offend, you need to be polite, not derisive, calm and moderate rather than provocative and inflammatory, and you must eschew ‘gratuitous asides’.
If you did all that, of course, you’d be unlikely to offend anyone in the first place. So there doesn’t seem much point in section 18D. And you’d also struggle to express your view in a way that would attract readers in a popular newspaper.
But consider Justice Bromberg’s whole sentence (in paragraph 425):
The lack of care and diligence is demonstrated by the inclusion in the Newspaper Articles of the untruthful facts and the distortion of the truth which I have identified, together with the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides. For those reasons I am positively satisfied that Mr Bolt’s conduct lacked objective good faith.
I have underlined the parts quoted directly by Holmes, and made bold certain parts not quoted. To my untrained, unqualified eye, Holmes is misreading the judgement. From my reading, Justice Bromberg is not suggesting that offensive language in itself renders 18D inapplicable; he is talking about offensive language in the context of untruths and distortions. The combination of those two is damning in a way that neither can be by itself. To me, it seems entirely possible that the protections of 18D could apply to anyone who (a) is wrong but avoids derision, provocation, etc. or conversely (b) is right but in a derisive, provocative, etc. manner.
Thus, I have no problem imagining, hypothetically, that Sections 18C and 18D might both apply. That is, someone may be insulted, offended, humiliated or intimidated (18C) by material that is (a) wrong but politely worded, or (b) right but derisively worded (18D). (In fact, people can often be insulted and offended by things that are both correct and polite.)
I do have a great deal of respect for Holmes. Maybe I’m misreading the judgement and Holmes is correct. Even so — even if the Racial Discrimination Act is too broad and infringes genuine free speech — consider the consequences for those violating the act. As Malcolm Farnsworth points out, in an article delightfully named “Help, help, I’m being repressed“:
There is no penalty for Bolt. Removal of two blog posts and an apology will satisfy Justice Bromberg. It’s slap on the wrist time, but the confected outrage has poured forth.
So what are we getting worked up over? Why should we fear this judgement, when the most onerous consequence of engaging in racially offensive speech is the requirement for an apology?
I think we’ve been programmed by contemporary political narratives to treat free speech as one of those places where, perversely, we stop thinking. We exhibit such conditioned deference to the term “free speech” that we consider it an absolute right. As a result, we have a tendency to focus on the most minute of infringements. It’s all-or-nothing, we assume. The pedants in all of us seek out the most trivial, technical, legalistic injustices. We then swing wildly into conspiracy theorist mode, and extrapolate this to the whole of human experience, imagining that tyrannical oppression is upon us.
Of course, free speech has never been an absolute right; not in the freest societies on Earth. We are constrained by myriad factors in what we can say, which makes worrying about technical infringements all the more ridiculous. Defamation law is the closest approximation to the Racial Discrimination Act, and we don’t blink when people are sanctioned for spreading malicious untruths to damage the reputations of others. As the Slightly Disgruntled Scientist puts it:
The difference is that defamation affects one person. Humiliation based specifically on sexuality, gender, ethnicity, or any other class of institutional marginalisation affects (a) the person targeted, and (b) any other member of such a group. Gay people still have to choose between publicly disclosing incredibly private information up front, or not running for any kind of publicly scrutinised office. Indigenous Australians now have to consider just whether their skin is dark enough to go for, say, an Aboriginal liason position, or risk being targeted by the likes of Bolt (who implicitly undermines the legitimacy of such positions, with the consequence of further marginalisation of a whole group of people).
Now, I do think that free speech is essentially about protecting our right to say things that others would prefer remained unsaid. Powerful political parties and interest groups do tend to find certain facts and opinions inconvenient, and have certain means of persuasion that need to be countered by legal protections. But it’s hard to find a justification for speech that is racially offensive and factually bogus and not in good faith. This sort of thing does not serve democracy at any level, and in fact causes real damage.
If Mr Bolt’s right to speak freely has been infringed, it is the most minor infringement imaginable. He has maliciously spread damaging untruths in publications read by millions of people, and been given a slap on the wrist.