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Bolt beyond the pale


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

Funnily, just a week or two ago when it was David Hicks and the anniversary of the Communist Party referendum in the news, I'm sure I didn't hear this "of course, no freedom is absolute" trope nearly as often. But then Bolt didn't merely shoot rockets at Kashmiris or act as a Soviet mole against his own country, like those lovable scamps did. He made Aboriginal purple feel hurt! He lowered the level of public discourse in the media below the high standards set by Geoff "cut off the head of the serpent" Clark and Larissa "More offensive than sex with a horse" Behrendt! He works for a big media company! How can anyone possibly defend someone like that?!

With this as a precedent, I'm sure the racial vilification law could produce some very interesting results in the hands of a Marcus Einfeld-like judge at the behest of a Carnita Matthews-style plaintiff.

Rod Blaine | 30 September 2011  

I think Andrew Bolt was telling the truth and it hit home. How does someone 7/8s or so removed from Aboriginality claim to be Aboriginal. They clearly are not nor does 7/8 made 8. Many people claim government funds for Aboriginality such as these people have claimed and yet I have an Aboriginal friend who has never claimed a thing and has made something of her life without help and proud of it.

Shirley McHugh | 30 September 2011  

Freedom of speech - in this case the freedom to say things that offend others, possibly offensive to most people - is precisely what is at stake in this case. Binoy, freedom of speech is absolute. Once you compromise it, you stand to lose it. (Yes, I defend an individual's right to exclaim "Fire!" in a theatre, even when there is no fire - freedom of speech comes with risks/costs, but the alternative is much riskier and costly to human rights). The reference to the Holocaust book is pathetic and unfair to Andrew Bolt, who has consistently opposed racism, including anti-Semitism, in his columns over the years. Being on the Left, I do not share his world outlook, but it's because I'm on the Left that I will defend his right to express an offensive view. The way things are going under this right-wing social democratic government, we may soon need a pro-democracy movement in Australia.

Barry York | 30 September 2011  

Identity, cultural history, shared stories are a part of who someone is. To make light of it is not only bad journalism it shows gross ignorance. The older I get the more my own heritage comes to the fore, it matters somehow to know who came before and how they lived. How I got to be the way I am.

Thank goodness people stood up to this bully journalism.

Jenny Esots | 30 September 2011  

Whether you agree or not with Andrew Bolt is personal. So is his opinion. It seems to me that the media is very close to being controlled by political extremes. It is another step toward eroding democracy - and that is what should be cherished. We are all free to form opinions - but obviously less free to express them.

Jane | 30 September 2011  

It has been my long term observation that Andrew Bolt, in his writings and when speaking on the media, has not learned to distinguish between opinion and fact. In addition he shows bias and unwillingness to respect the opinions of others. For example, whenever he appeared on the ABC's Insiders program he talked over other journalists with whom he did not agree and, therefore, could not have been not listening to them. It would be helpful if he could learn from his current experience.

Margaret Costigan | 30 September 2011  

Good work. Freedom carries huge responsibility for care, enabling, understanding, compassion, etc.... No one is free to abuse, demean or sit in judgement on another!!!

Patricia Bouma | 30 September 2011  

Barry York tempts me to write a scurrilous, vindictive riposte accusing him of all manner of nasty things without a scintilla of truth but I can't decide whether to make it racist, homophobic or faith-based. Besides, I'd have a relatively small audience here on Eureka Street. If I could get a run in the Herald-Sun...now that might be worth testing!

Frank Golding | 30 September 2011  

How extraordinary to read comments from people justifying the state punishing a journalist for expressing a view because they find the view offensive. All in the name of 'freedom'? The totalitarian impulse is particularly apparent in those who think the state should regulate freedom in the interests of harmony. Give me the chaos of dissent and debate any day: "It is right to rebel"!

Barry York | 30 September 2011  

Justice Bromberg was applying the law.
I hope Bolt does appeal to the High Court because on the basis of the information available to me Bolt did break the law.
Then whatever the decision of the High Court, either for or against Bolt, all those who are bewailing the state of public discourse in Australia will at least know what are the acceptable limits to impugning venal motives to some mixed race Aboriginals when they identify as Aboriginals.

Uncle Pat | 30 September 2011  

How can anybody say that we have something like freedom o speech in Australia? We may be able to say a few things as long they do not offend the political correct thinking of our modern day inquisition. Freedom is not something which is being lost overnight, but we give it away by trying not to offend anybody.

Beat Odermatt | 30 September 2011  

I am not sure whether some of the correspondents here have actually read the offending articles: they were clearly intended to vilify the individuals concerned. Andrew Bolt has long history of deliberately and maliciously targeting Aboriginal people in his Herald Sun articles; his denial of the existence of the Stolen Generations, for example, is repeatedly stated. He has no concern whatsoever for the damage his articles inflict; his brand of journalism is toxic. Usually his targets have no comeback, no opportunity to correct distortions and errors and to repair the damage to their reputations and lives. Expression of opinion is not the issue; opinion should at least be informed by fact.

Kate | 30 September 2011  

"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.'"
what politcial gobbledygook! And from a magistrate with his background. Wow! we have ome far in implementing the arian, sterilised, society. What Hitler didnt manage, our society is doing beautifully and with the help of the law.

Hannah | 30 September 2011  

Binoy Kempmark should fall to the ground and kiss Andrew Bolt's feet for having tested the law regarding racial discrimination, lest he himself be dragged into Court for his consistent thread of subtle anti-Jewish, anti-Israeli remarks. Where do Jews fit into this current court case, aside from the fact that the presiding Justice is of Jewish extraction?

I personally, as a Jew and someone who suffered the loss of 132 members of my immediate and extended family on my mother’s side, and over 2,500 on my father’s side, am hurt, insulted, denigrated, slurred, humiliated, vexed, and to put it plainly “pissed off” by his remarks that Jews have made an INDUSTRY out of the Holocaust. Where does our Wonder Child, Binoy Kempmark, get the effrontery to compare the results of the Holocaust to Andrew Bolt’s newspaper articles? Yes, again as a Jew I can appreciate and feel for a target group, in this case Australians of Aboriginal extraction, no matter to what level the dilution of their Aboriginality may be; But Binoy brings his personal bias to nearly every article he writes for Eureka Street. The bias is both obvious and consistent – and who says that being a hallowed “SCHOLAR” prevent one from having personal view that can, when THE LAWS is applied to these views in the spirit that Justice Bromberg applied in this case, be regarded as racist.

In his hallowed Ivory Tower of Academia he should be impartial to race, culture and background, but the consistent thread throughout his articles would, I suggest, require that he should, like Andrew Bolt, offer an written apology to his target group, a group whom he consistently slurs – namely the Jews.

Josh | 30 September 2011  

To be absolutely honest, I was just so happy to see someone, the judge, tell Bolt something Bolt didn't want to hear and was probably constrained from commenting on, lest he serve time for his rsvp comments.

I doubt 'free speech' has been tampered with at all but if this judgement decreases the amount of gormless comment from newspapers, particularly from that dumpster paper, The Australian, then the result is a good one.

But what's this, "How does someone 7/8s or so removed from Aboriginality claim to be Aboriginal".

Now, hang on a moment please. What about all the Irish in Oz or the USA who insist on tagging themselves as 'Irish-Australian' or 'Irish-American' just because some distant relative came from there?

No one cares that they sound Australian, have lived here all their lives and may never have been to the emerald isle.

In fact, it seems to be quite accepted in the community.

But then, why is there such a need to identify as coming from a particular sovereign-state and then being entrapped by all the foibles others see as being 'unique', even though it is not,to that spot?

All grist f'mill for the racists and nationalists in our midst.

Harry Wilson | 30 September 2011  

Barry York quoting Chairman Mao to defend Andrew Bolt. Priceless!

Shane Maloney | 30 September 2011  

Right then. So the rule is that "making incorrect statements of fact in an offensive tone and insinuating that a person is a hypocrite or liar about some matter that goes to their fundamental identity". Very well. So how many here in the Geoff Clark fan club cheered when Peter Costello's wife Tanya got a court order in 1998 to pulp Bob Ellis' book "Goodbye Jerusalem" as defamatory because it falsely claimed she'd "f##ked" Tony Abbott? Show of hands? Yeah, I thought as much.

Rod Blaine | 30 September 2011  

Right then. So the rule is that "making incorrect statements of fact in an offensive tone and insinuating that a person is a hypocrite or liar about some matter that goes to their fundamental identity". Very well. So how many here in the Geoff Clark fan club cheered when Peter Costello's wife Tanya got a court order in 1998 to pulp Bob Ellis' book "Goodbye Jerusalem" as defamatory because it falsely claimed she'd "f##ked" Tony Abbott? Show of hands? Yeah, I thought as much.

Rod Blaine | 30 September 2011  

Frank Golding, free speech does imply the risk/cost that you can indeed write something about me that is "a scurrilous, vindictive riposte accusing him of all manner of nasty things without a scintilla of truth". All I could possibly do, under a free speech regime, is to take you on - proving that your riposte would indeed be scurrilous and vindictive. It's called debate. That would satisfy me. But do you really want the state to decide what is scurrilous and vindictive? Looks like we're still fighting the good fight from the 1640s when John Milton argued against licencing of the press. Of course, one does not have to share my absolute commitment to free speech to see that Bolt was expressing a view offensive to some/many/everyone but that this is his right in a free society. Those offended have an equivalent right to counter what he said. If we do eventually have a Bill of Rights, I just hope it includes 'the right to offend'.

Barry York | 30 September 2011  

Shane: I'm defending free speech, not just Andrew Bolt.

Barry York | 30 September 2011  

Journalism professor, Jay Rosen stated that we can have our own opinions but not our own facts.

Unfortunately Andrew Bolt is not a journalist, just a mischief maker who cares nothing about the facts.

Facts are best | 30 September 2011  

Freedom of speech is all well and good as long as it is enjoyed by everyone. People like Andrew Bolt and his equivalents in the Sydney media have a platform to say what they like without the ordinary citizen being able to put contrary views. If this case manages to show the Andrew Bolts of this world that there is some limit to their power, it will have done a useful service.

I just wish ES could have found someone to write about it with some anger, some fire, rather than the academic effort here.

Frank | 30 September 2011  

1. It's times like these when good people of whatever political persuasion rise to the top of the pond and the dregs sink to the floor. To people like Barry York: from a paleo-lib/con to a leftie: my hat goes off.

2. I love the closing remark of Kampmark: the case was really about "lousy journalism". It's funny on so many levels. eg. a. So the real intent of the Act is to suppress "lousy" journalism, not racial vilification? Go figure - so Andrew's were the only 'lousy' pieces of journalism since the Act was promulgated? b. It comes from David Marr (c.f. Alan Jones' sexuality, prospective asylum seekers have no clue about Australian government policies, John Howard suppressed free speech, etc, etc) c. The 'lousy journalism' pertains solely to Bolt mixing up a grandmother with grandfather, but the point he's making stands. Outrage! To the courts!

3. The fact that E.S. posts a contribution of this pitch within a couple of days of the judgment, but has yet, after months, to examine the significance of the Larissa Behrendt/Bess Price exchange raises in my mind the sad question: "Is there a distinctive form of 'lousy Catholic journalism'?"

HH | 30 September 2011  

What is the penalty for journalists in Bolts situation? A fine? I have been personally affected by a previous article of Bolts. I think he should be free to express things any way he likes but I agree with the good faith ruling. However the "punishment" should be a choice between whatever fine is imposed and the publishing of a "qualification" to express sensitivity to those he may have offended plus a few hours of some related community service such as counseling or lifeline training.

Ghandhi noted that peace is restored by going further in the other direction of a disruption not merely returning to the status quo. Even a simple apology is not adequate to fully restore the peace sought by those he may have offended.

In order for the punishment for offending people to be in the public interest it should be practical and address the actual hurt experienced. In this case it should at least involve a component of development of compassion for those offended, not a fine.

Bolt is obviously a talented journo. He could no doubt find ways to challenge and develop himself further by expressing his opinions just as strongly while increasing his compassion for those he may offend through bad faith choice of hateful analogies. Im sure he has deadlines to meet and may experience not having the time to do extra thinking but in this case the court seems to be echoing my own desire that journos give it a crack.

In summary, the consequences for journalists (and publishers) offending people out of laziness and sensationalism is the real issue here not freedom of speech.

Name Withheld | 30 September 2011  

The only real freedom in speech or any sphere is responsible freedom.

Marlene Marburg | 30 September 2011  

@ Harry Wilson. So you do not like either Bolt or The Australian. Good and well. But what happens if some other judge shuts down the comments of a paper or a journalist that you happen to like? This is the whole problem. The law relies too much to the opinion of one individual, the judge. He must decide matters that are highly subjective i.e. what is offensive or insensitive.

If David Marr gets taken to court by someone who is offended by one of his columns, I will keep an eye out for your comments.

John Ryan | 30 September 2011  

"Bromberg attacking lousing journalism?" what absolute poppycock. Bromberg simply forgets that there was a time in very recent memory that his people werent allowed to even breath let alone speak and yet he stomps on freedom of speech? Nice One Judge. Wait and see what doors you have opened.

Hannah | 30 September 2011  

Josh, I think you are conflating Jewish identity with the Israeli state. I have smuggled items out of the Soviet Union for Jewish friends, and have been honored to be invited to celebrate the Passover with Jewish friends in Australia. This does not prevent me from seeing then establishment of the State of Israel as one of the real tragedies of modern history. I am Catholic, but that does not prevent me from feeling revulsion at what comes out of the Vatican, nor does it prevent me from feeling betrayed by the scribes and pharisees who expect us to recognise their leadership. If you criticise the Vatican, I do not see you as anti-Catholic. Binoy Kampmark is not anti-Jewish for criticizing Israel.

Peter Downie | 30 September 2011  

Of course we won't mention the White out the Black policy that has made these people fair skinned aborigines now will we because that was decided by racist white people.

Bolt should never had been allowed to simply attack those people for no reason at all.

As for being a great blogger he is wrong about almost everything and only incites the bigots more.

Marilyn Shepherd | 30 September 2011  

If you say that the judge was really ruling on "lousy journalism", where is there a law addressing that activity? You might also be interested in an article on this topic, also published today, by Adam Creighton of The Centre for Independent Studies.

David O'Halloran | 30 September 2011  

I won't get into the argument about free speech being endangered. I just wish that Andrew Bolt had taken the advice given journalists by the Prime Minister at a recent meeting of the Press Club. "Don't write crap!"

kevin cavanagh | 30 September 2011  

The furore surrounding the judicial judgement regarding Bolt's reckless and inflammatory journalism highlights the need for a greater scrutiny of our defamation law. Bolt's employers, News Limited has earned the global title of a disgraced media conglomerate - from telephone hacking to political extremism . Bolt may not rank high in the eyes of his employer,i.e. not in the same league as Albrectsen, Shanahan, et al, but watch for the retaliatory onslaught by News Limited. Bolt's journalistic decapitation would be the last straw as far as News is concerned - i.e. in the wake of NoTW scandal and the subsequent public humiliation of Murdoch & son. They are not the kind to forgive or forget ( read Robert Manne's treatise in Quarterly Essay ). Senator Brandis' asinine remarks in defence of Bolt's dubious right to vilify people further increases the prospect of a more vicious anti-Labor campaign by News Limited in Australia.
Of course, the kind of propaganda that Bolt promulgates has its precedence in Goebbels' and Mosley. It also brings out the likes of Delingpole from UK's right-wing Telegraph.
With the exception of ES andNM, we don't have the local equivalent of the English Guardian or Independent. Fairfax is too busy balancing itself on a shaky media fence. It also lacks the calibre of correspondents that will take on media bullies such as News Limited.
Kampmark's balanced analysis clearly distinguishes the difference between one's freedom of speech and another's toxic attempt to pollute and distort our value systems beneath the veneer of free speech. The former carries moral responsibility that is inherent in most civilised people, while the latter is the instrument of demagoguery.

Alex Njoo | 30 September 2011  

Peter Downie - I am glad to find another "Righteous Gentile" in this world; even one such righteous soul makes life worth living.

Now to get back to the Andrew Bolt's article - what has the Holocaust, or any supposed Holocaust Industry by Jews, got to do with either Freedom of Speech in Australia OR Anti Aboriginal statements by anyone, let alone Andrew Bolt? Was there any need to bring either the Holocaust, Jews, Jewish analysis of the Holocaust described as an Industry, into this article? This aspect, from my vantage point, is just another opportunistic occasion to have a dig at Jews.

Please put one and one together, as far as Binoy is concerned, and you may just find that you get two.

As for your comment that you see the establishment of the State of Israel as one the real Tragedies of history I will tamper what you have said with what you have not said: is the establishment of the State of Israel (A refuge for a people dispersed to the four corners of the earth for 2,000 years (80 generations)) a greater Tragedy then the Holocaust? Both are a reality of our time. And if you will allow me a very Jewish trait I will ask a very leading question. In absolute numerical figures have more Palestinians been killed by the Israeli military than have Palestinians been killed by their fellow Palestinians with different political views? The answer to that is the crux of the so called historical Tragedy of the Establishment of the State of Israel.

Peter, please keep in mind one fact – in the whole region of the Middle East, amongst the close to one billion inhabitants of the area, it is only Israel which is a Liberal Democracy. And what Israel is fighting for is not for a liberal democracy – for nobody with a Liberal Democratic background and thinking seems to want to understand this – Israel is fighting for its existence and for the life of all its citizens – - be they Jew, Arab or Christian – and don’t tell me that the Israeli Arabs or Israeli Christians would be protected by the invading armies rather than being slaughtered by them. If you imagine that anyone residing in what is Israel today is safe from death then please examine the reality of what IS, and question your liberal democratic ideals; you may find your ideals wanting – I do.

Josh | 01 October 2011  

I may say a lot of things that are poorly researched, lacking in scientific rigor, fatally tainted with my personal subjective vision. (And I do). However, I'm not a journalist with enormous influence over people who believe that ' I read it in the paper, it must be true'. Andrew Bolt seems to have no sense of the responsibilities attached to the practice of his craft. As others have already said, this isn't about freedom of speech, but about responsible journalism.

Joan Seymour | 01 October 2011  

Why bother to make any posts regarding an article, or reply to a post, when that post MAY BE CENSORED at the Editor’s whim? I thought that the purpose of Eureka Street’s existence was to generate lively debate amongst the general community but, it appears, I was wrong ...

EDITOR'S REPLY: As is the case with most publications, we aim to edit posts where necessary for brevity or avoidance of ad hominem argument. We ask posters to observe a 200 word limit. After cutting by our moderator, Josh's post was still over 400 words. We do not normally debate or explain cuts to postings.

Josh | 03 October 2011  

The editor here writes, ".. we aim to edit posts where necessary for brevity or avoidance of ad hominem argument.. " Then why did you not cuts posts that have accused me, and others, of being bigots, Islamophobes and racists? When I attempted to defend myself against such accusation, they were not posted. I would have much more confidence in your policies of moderation if you followed them consistently. Such has not been the case in my experience thus far.

Patrick James | 04 October 2011  

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