FREE SPEECH AND THE RACIAL DISCRIMINATION ACT

Andrew Dodd at the Drum had this to say about the Federal court ruling against Andrew Bolt and the Herald Sun on a racial discrimination case brought by a group of prominent fair skinned Aborigines that Bolt accused of claiming Aboriginality to advance their careers:

“No doubt the Federal Court would like us to see its judgment against columnist Andrew Bolt today as a call for decent standards in journalism, rather than as a landmark ruling against freedom of speech.

But in reality it will not be seen that way because it is a slap in the face for free expression. It limits the kinds of things we can discuss in public and it suggests there are lots of taboo areas where only the meekest forms of reporting would be legally acceptable”.

Dodd then went on to say that:

“Justice Mordy Bromberg ruled in favour of nine fair skinned Aborigines who claimed that two articles written by Andrew Bolt two years ago were inflammatory, offensive and contravened the Racial Discrimination Act.

There is clear logic in the judge’s ruling, but my contention is that it fails to establish why Bolt’s writings did not qualify under the freedom of expression exemptions within the Act and it falls short of establishing that Bolt’s motives were as debased as the ruling suggests.

Bromberg makes it clear that Bolt and the Herald Sun lost their case because Bolt got his facts wrong and because he went out of his way to distort and inflame and provoke……..
Controversially, the judge also ruled that it’s the group of people who have been offended that should determine whether or not a comment is offensive. In other words, the views of an average Herald Sun reader are not important here. It’s the views of Aboriginal people that matter.

In essence this case was lost on this point – the belief by the judge that “people should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying………

I think the ruling is dangerous because it asserts as indisputable fact that Bolt’s articles were not reasonable and were not written in good faith and do not classify as “fair comment”. The Judge clearly believes they were not written with a genuine public interest in mind.

But in the end this is just one person’s view. Although those of us that don’t like Bolt’s writing might think we understand his motives, we really don’t have a clue whether Bolt honestly held these views. Perhaps he was being courageous, rather than reckless, in seeking to talk openly what many would say quietly. I don’t share his views but I can see some merit in the argument that true racial tolerance is only achieved when we can ventilate unpopular views openly and have a robust discussion about them.”

Perhaps the case should have been run as defamation. However, to be realistic, the libel laws in Australia are too often used to allow the rich and powerful to shut people up or stifle debate on issues that should be debated. To be realistic too the ruling is fuzzy enough to create uncertainty in some people who want to comment critically about racial issues and the behavior of individuals and organizations. This uncertainty can result in things being left unsaid that should be said.

Think about the robust comments made in many parts of the media about Abbott, Gillard and Andrew Bolt. There is certainly the odd one that could be described as “encouraging public disdain”. There are certainly some where at least one of the commentators has got their facts wrong. (They can’t all be right.)

Personally I would like the robustness of public debate to be protected even if it doesn’t mean that we can shut up Andrew Bolt.