Best of 2011: Bolt beyond the pale

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The decision against Herald Sun columnist Andrew Bolt in the racial vilification case of Eatock v Bolt raises various troubling issues that need to be contended with.

Nine individuals were the subject of Bolt's stinging attack in two articles and two blog posts in 2009 describing them as 'political aborigines' of Caucasian descent and claiming they had enriched themselves by claiming an 'indigenous' status. The nine individuals, led by Pat Eatock, sought a public retraction of the claims made, and an undertaking not to print such material again.

Justice Mordercai Bromberg of the Federal Court found that fair-skinned Aboriginal people 'were reasonably likely ... to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles'. Bolt could only lament the passing of free speech in Australia.

He has his followers. James Delingpole, writing in the UK Telegraph, resorts to hyperbole in extolling the virtues a Bolt can have in the mediascape. 'For my money probably the best political blogger in the world is Australia's Andrew Bolt.' He exposed Climategate; he has depth; he is, to put it bluntly 'one of the good guys' whose punishment suggests that 'freedom of speech is dead in Australia'.

Section 18D of the Racial Discrimination Act 1975 does afford a freedom of speech defence, allowing insulting and humiliating remarks to be made on the basis of skin or colour provided it is done 'reasonably and in good faith' in the pursuit of the public interest. Certain groups, such as Liberty Victoria, argue that the section is too widely drafted.

For Bromberg, it was still lawful to cite racial identification in opinion and challenge the 'genuineness of the identification of a group of people'. Bolt had, however, gone too far. He did not take into account the facts. He had botched his research on the genealogy of the claimants. He had shown bad faith in expressing his views.

The Danish philosopher Søren Kirkegaard put it rather well: people demand free speech to compensate for the freedom of thought they rarely use.

Nor was Bolt a casualty of the death of free speech, for, in the mind of the Justice, the intrusion was 'of no greater magnitude than that imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law'.

Bolt's stormy antics do have a certain echo. One remembers the claims by Norman Finkelstein in The Holocaust Industry that making use of the Holocaust had become a lucrative endeavour, fetishised and manipulated. Bolt's use of 'Political aborigines' comes close in some ways to Finkelstein's claim about figures in the American Jewish community who have trafficked in a currency of past suffering to obtain a position of worth and favours for Israel.

Scholars of Holocaust memory in the United States such as Peter Novick note that it only became a civic religion from the 1960s. Prior to that, it had been repressed. Those offering to write about it, like the accomplished scholar Raul Hillberg, were discouraged from examining it.

The more compassionate way to read such opinions is to see them as a constructive unmasking of wrongheaded ideology. But such acts of unmasking come at a price to those who have every reason to remind us of intense, sometimes unspeakable sufferings. The line between unmasking an ideology and assassinating memory altogether is often a very fine one.

And if one is in the business of challenging the way facts are used, one should get them right to begin with.

Free speech, in all its effects, cuts both ways. It is empowering, liberating, a sign of a mature society that enables people, even morally repulsive ones, to participate. It can also harm, a harm that is permissible if civic society is to be maintained.

But no freedom is absolute. The hurt that can be occasioned by opinion should always be at the fore of the speaker's mind. Bad faith should be avoided, while reasonable assertions wrongly made in good faith allowed.

That is where the difficulty lies. Spencer Zifcak of Liberty Victoria notes that a balance must be struck between 'the right to be free of racial intolerance and discrimination on the one hand, and freedom of expression on the other.'

There is also something to be said that free speech does not have the protections it should in Australia. In a country that has no bill of rights, reputations can be unjustifiably protected by the mystical powers of common law and anti-defamation legislation.

The High Court has only offered Australian citizens a watered down version of an implied 'freedom of political communication', a doctrine that Bolt may well test.

In the end, as David Marr explained in the Sydney Morning Herald, freedom of speech may not be the issue at stake here. Bromberg was simply attacking lousy journalism.


 

Binoy KampmarkBinoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. 

Topic tags: Binoy Kampmark, Andrew Bolt, racial vilification

 

 

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Existing comments

Binoy Kampmark - brilliant quote from Kirkegaard - the best thing I've read for a long time! Many thanks to you (and the esteemed philosopher).
Michelle Goldsmith | 13 January 2012


Like a true apparachik, you defend the status quo's right to punish those who disagree with its views. Coming from a minority country, I have been offended many times by people in public positions who should know better. And when it comes to offense, I expect you will argue for the limitation of free speech in attacking Israel - or are some people 'more equal than others'? Bolt had the right to say what he said, and you did not like what he said.
Skye | 13 January 2012


Public interest should be public benefit but not always the case and not always necessary. So an insult or a speech that likely to become an insult must be public interest as public benefit; otherwise indefensible. If a speech is likely to become an insult, there must be reasons which are good or beneficial for something - especially when it is made by a public figure with influence - in this case Andrew bolt. Freedom of speech must be practised with good reasons - at least one. If someone can show a reason that is clearly for benefit of society, Freedom of Speech should be practised. If there are only two sides and to benefit one side, for good reasons, I think Freedom of Speech should be practised too. In general, whenever someone is angry, he/she would insult the other side. Freedom of Speech should have nothing to do with that. However, opinionated speech are made often - against a public figure or a politician or a religion often - especially online between two or more individuals or in a forum or group - or even among friends or family members. In this case, it must be according to rule of the groups or forums or those people - unless someone sues someone. Outsider should have nothing to do with their activities. IMHO
AZURE | 13 January 2012


Oh Yes, I enjoyed, especially the last sentence! Well done.
Patricia Bouma | 13 January 2012


I agree with David Marr. It is lowest common denominator journalism that is being called to account. One has to read Bolt's whole portfolio of writings to see a pattern and the pattern is not a life enhancing one. He has an agenda that needs to be called to account as it is not inspired by high journalistic principles.
graham patison | 16 January 2012


It is all very well for the High Court to determine that people have been offended by Bolt's article, and treat him accordingly. The High Court has found that Bolt's claim that certain individuals were not raised as fully enculturated Indigenous people was fallacious. This, in my view, is far and away his most egregious error: that he, as a journalist, (and his editors) allowed a load of utter balderdash to go on the public record is being "fact". For so long as Bolt leaves the record uncorrected, Bolt and the shabby bunch of propagandists who pay him warrants nothing other than universally applied opprobrium.
David Arthur | 16 January 2012


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