There are three fundamental rationales that are often advanced in favour of free speech. The first is that free speech advances the search for the truth. The second is that free speech supports individual freedom and autonomy. The third is that free speech is essential to a liberal democracy.
It cannot be denied that racial vilification laws impact upon the freedom of speech. This is the entire purpose of racial vilification laws. These laws operate in a manner akin to defamation laws. Both defamation and racial vilification laws operate as a type of personal injury law. That is, where harm is done to a person's reputation or dignity the law offers a course of action and a remedy.
The difference between defamation and racial vilification laws is that where the former is concerned with individual reputation the latter is concerned with a group's reputation and dignity.
The basis for racial vilification laws is twofold. Firstly, every individual has a right to live with dignity in Australia without facing vilification on the basis of their race, colour, national or ethnic origin. Secondly, racial vilification undermines equality by lowering the status of a defined group within the eyes of the community.
One of the fundamental purposes of speech is to persuade. It follows that speech which can be characterised as racial vilification has the capacity to negatively influence others against other races. Accordingly, it is consistent with a general prohibition on racial discrimination to make some instances of racist speech unlawful under the Racial Discrimination Act subject to certain conditions
Paradoxically, the Andrew Bolt case has actually advanced each of the three rationales that typically support free speech.
First, the litigation and the judgment have exposed a number of falsehoods in Bolt's writings. If the articles stood unchallenged these falsehoods would have remained on the public record. A democracy must be a marketplace of ideas, but no market prospers when false claims go unchallenged.
Second, the imputation in Bolt's articles, that the light-skinned individuals in question were too 'white' to be Aboriginals, would have the effect of lowering the status of those individuals and other light-skinned Aboriginals in the eyes of the wider community. This would diminish their individual freedom and their ability to freely and happily identify with their racial and ethnic group.
Aboriginality is an important topic. It is worth debating, particularly in the context of affirmative action policies. The individual freedom of others to raise concerns about the definitions of Aboriginality or affirmative action measures has not been lost. All that Part IIA of the Racial Discrimination Act does is to impose a condition that such matters be discussed reasonably and in good faith.
Presumably, this involves not presupposing misconduct on the part of others or publishing false claims about them.
Third, equality is crucial to a democracy. It is just as crucial to a democracy as free speech. A democracy cannot flourish when some members of the community are free to say what they want while others are forced to speak from the margins of society.
Many of those who were the plaintiffs in the Bolt case have been important voices in Indigenous affairs. It does tend to get overlooked in debates upon racial vilification laws that racial vilification itself is a form of 'silencing'. That is, if the status of a racial or ethnic group is diminished within society then speakers from that group face a harder task in having their voices heard.
Many pro-free speech advocates are seeking to use the Bolt case as a justification for changing or scrapping the racial vilification laws. These laws have been on the books since 1995. They survived the 11 years of the Howard Government. A moderate amount of jurisprudence has developed under these laws. Yet, no other case in the last 15 years has lead to any calls to scrap or amend the laws.
Part IIA of the RDA is not perfect and there are aspects that may warrant reconsideration. It would be desirable to see some uniformity in Australian racial vilification laws at a Commonwealth, State and Territory level as to the harm threshold. Part IIA of the RDA, which is concerned with whether a speech act 'offends, insults, humiliates or intimidates' arguably sets the threshold lower than other State and Territory laws which are concerned with 'hatred', 'severe ridicule' or 'severe contempt'.
But if the articles in the Bolt case would have contravened a standard of 'severe ridicule' or 'severe contempt' anyway, then it is difficult to see why this decision should warrant changing the laws.
It might be that in almost every other case under the RDA the unsuccessful defendants have tended to be people at the margins of society; Holocaust deniers, disturbed individuals or others whose racism has been blatant. Bolt writes his opinions from within Australia's mainstream media. Surely the identity of the defendant cannot be a sound basis upon which to change the law.
Dilan Thampapillai is a Lecturer with the School of Law at Deakin University. Prior to becoming an academic he was a lawyer with the Attorney-General's Department and the Australian Government Solicitor. Dilan specializes in intellectual property, free speech and public law.