Unhinging the Bolt

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.

Enforcing enlightenment

I agree wholeheartedly with Jonathan Holmes’ article (and his April 4 episode of Media Watch) on Andrew Bolt. There are probably a few essays now floating around expressing a similar sentiment on Bolt’s run-in with the Racial Discrimination Act.

Australia doesn’t have an institutionalised right to free speech (except political speech, as narrowly implied by the electoral provisions of our constitution). However, there is near universal agreement that free speech is a fundamental right. The preamble to the Universal Declaration of Human Rights states, in part:

The advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.

Most of us do acknowledge that speech cannot be completely free. There are privacy rights to consider. There are libel and defamation laws that offer a defence against malicious untruths. There are also security, diplomatic and intellectual property issues that require a degree of secrecy.

Most of us also abhor racially-motivated hate speech. I can support laws against incitement to commit acts of violence or discrimination (e.g. Section 17 of the Racial Discrimination Act), because (though I’m not a lawyer) that offence seems fairly easy to define and has an immediate impact on the safety and opportunities of others. Not so the consequences of speech that is merely “offensive, insulting, humiliating or intimidating”, as outlawed in Section 18C. Those criteria are more than enough to publicly condemn the speaker, but not nearly enough to deserve legal proceedings.

The kinds of acts being outlawed in Section 18C might be vicious, cruel, and stupifyingly inane, but they are not defamation and not incitement, and nobody’s safety or opportunities are compromised by them. Most of us (I hope) would loosely agree that things should be legal unless there is a compelling case to make them otherwise, and I simply don’t believe that case has been made here. The law is not a scalpel we can use to extract cancerous thought – it is a blunt instrument to help prevent tangible wrongdoing.

Andrew Bolt is a true test of our commitment to free speech, because he says almost nothing of value. Any reasonable person would deride almost everything he stands for. His sneers at people of other races and cultures, at the scientific and academic establishment, at anyone else tenuously associated with “the Left”, are worthy of nothing but pity and derision. If he were to engage in defamation or incitement, throw the book at him by all means, but otherwise leave him to his deranged ramblings.

In the general case, Section 18C has clearly not been enforced with much conviction. Bolt and like-minded ideologues have so far gotten away with a great many acts that would seem to be prohibited. If enforcement ever did suddenly become an overwhelming priority, I expect the situation would rapidly descend into farce, with a million bigots mobilised and screeching obscenities into every possible medium. Their White Christmases would all come at once. It would, in other words, backfire spectacularly. The instinct to ban hate speech is motivated by a commendable desire to change minds (or at least to prevent them being perverted by hatred), but the law is exactly the wrong tool for the job.

Free speech is not about saying nice things. We have no need of laws to protect our right to talk about the weather, sports or cooking. Free speech is about protecting those who offend us, because it is precisely this group that is otherwise perpetually in danger of being shut down, or sent underground. Sometimes, the offending remark is itself more enlightened than those offended by it, and so does more good than harm, but not always. Even when the message has no redeeming value whatsoever – even when it demonises the most vulnerable – free speech is about protecting society from itself, while also providing the only useful way to fight back.