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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Friday, October 07, 2011

The most obvious reason not to be sorry for Andrew Bolt...

... is that so many findings of fact made by Justice Bromberg in Eatock v. Bolt make Bolt look like a bully who is reckless with the truth. Again and again, the judge makes findings like the following about particular people whom Bolt attacked in print:
The evidence given by Ms Heiss was not contested and I have no reason to not accept it as truthful. In particular, I find that by reason of Ms Heiss having been raised as Aboriginal she has and does genuinely self-identify as Aboriginal. She has Aboriginal ancestry and communal recognition as an Aboriginal person. She is an Aboriginal person and entitled to regard herself as an Aboriginal person within the conventional understanding of that description. [...] She did not consciously choose to be Aboriginal. She has not improperly used her Aboriginal identity to advance her career. She is a person committed to her Aboriginal community and is entitled to regard her achievements as well deserved rather than opportunistically obtained. I accept that she feels offended, humiliated and insulted by the Articles or parts thereof in the manner outlined by her evidence.
Insofar as Bolt has accused numerous individuals of, in effect, opportunism, dishonesty, and greed, he has defamed them. He has done so from a position where he commands an enormous mainstream audience whose views he is capable of influencing. A journalist in his position will tend to be believed by large numbers of people on matters of fact, so we need him to be careful with the truth, however extreme his political values or opinions may be. This isn't just a matter of political correctness: it's basic to a healthy culture of public debate.

It's likely the individuals concerned could have vindicated their reputations by suing for defamation. Although I think defamation law needs to be constrained so that it doesn't chill legitimate speech, I don't have a problem with some basic law of defamation remaining in place to protect people from false allegations that are damaging to their good repute - especially when those allegations are made by people such as Bolt who command huge audiences.

We are social animals, and we cannot flourish as individuals if our reputations are successfully trashed. If I am (explicitly or implicitly) called a liar or a dishonest opportunist, or anything of the sort, by someone who has credibility with a large and relevant audience, that is highly destructive to my ability to function as a social being.

Put simply, one reason not to be sorry for Bolt is that he could probably have been sued for defamation in any event, possibly with a large damages award to the people he defamed. People who are defending Bolt's freedom of speech need to keep this in mind. They might also keep in mind that the operation of populist bullies can intimidate others into silence. His publications must have at least some intimidatory effect on fair-complexioned people wishing to identify publicly as Aboriginal.

I accept that freedom of speech in the strict sense is a freedom against government interference with what we want to say, so I am not suggesting that Bolt denied anyone freedom of speech in the strict sense. Nonetheless, we do have reason to fear individuals who are in a position to intimidate others into silence. If they use their power irresponsibly, we have every reason to respond with hostility and harsh criticism.

Again, none of this means that the legislation under which Bolt was pursued is flawless. Indeed, this is a case where it would have been cleaner and more straightforward if the individuals concerned had sued for defamation to clear their reputations and obtain compensation for the damage their reputations had suffered. That's what defamation law is for.

Instead, they took action under a provision of the Racial Discrimination Act. That immediately creates a problem, because it immediately looks as if they are seeking some restriction on Bolt's freedom of speech above and beyond that imposed by a properly constrained defamation law. I have no idea what their real motives were in invoking this Commonwealth legislation - perhaps they thought the Federal Court provided a cheaper and more user-friendly jurisdiction than the state courts, or perhaps they wanted to send some kind of political message, or perhaps there was another reason. I don't know, so I won't speculate. (If anyone does know what they may have said about their decision to invoke the Racial Discrimination Act rather than to sue for defamation, I'll be interested.)

Under section 18C of the Racial Discrimination Act, Bolt was not sued directly for his damaging falsehoods about individuals. These became relevant at the stage of whether he had a good defence.

He was pursued under a provision that makes it unlawful to say things in public that are reasonably likely to offend, insult, humiliate or intimidate a class of people, where what is said is wholly or partly because of the race, colour, or ethnic origin of those people.

Alas, that provision is a can of worms - it is open to numerous interpretations, and there is the possibility that it could extend to forms of speech that go far beyond the obvious ones, such as abusing someone on the public street with racist epithets ("Get out of our way, you fucking cockroaches!"). Indeed, Bolt's articles in the Herald Sun, however unsavoury they may be, are quite remote from that sort of situation. The reasoning used to get them to fall under section 18C has a rather procrustean look about it to me. Even the humble word "because" is difficult in the context of this legislation. I'm not going to say that the judge got it wrong in law - he seems to do a pretty good job of wrestling with the language of the statute - but the case will very likely be appealed to test the scope and meaning of section 18C.

Bolt's slurs against individuals really became relevant when he ran the legal defence that his conduct in writing the articles was done reasonably and in good faith for a purpose in the public interest (consult the judgment for the nuances and difficulties of this). The underlying idea in the judge's reasoning is that Bolt could hardly claim that he had acted reasonably and in good faith when he was so reckless with the truth about the people concerned.

Again, the meaning of the words in section 18D, which provides the statutory defence, will very likely end up being tested in appeal proceedings. Similar provisions appear in other statutes, so it's not just a problem about the operation of the Racial Discrimination Act. We need such statutory provisions to be interpreted broadly - i.e. so that the defence is not too difficult to make out - in order to protect freedom of speech.

Unfortunately, the judge took into account not just these aspects of Bolt's articles but also their "inflammatory and provocative language" - that is unfortunate, because we should not be told that our speech is unreasonable or in bad faith merely because it is snarky or satirical, or passionate or denunciatory. There may be cases where speech is so hateful ("For these reasons, I conclude that Canaanites are basically rats and cockroaches...") that any attempt to dress it up as a good-faith contribution to discussion of a matter of public interest is clearly a sham. But we should not be so quick to draw such a conclusion that legitimate satire or denunciation is thought to negative reasonableness or good faith.

Here is where I part company with any people on the Left who think there's nothing to worry about. I submit that the judge's discussion goes further than was necessary. It has too great a tendency to undermine the reasonable/good faith defence wherever it appears in legal statutes. Given Bolt's actual behaviour, the outcome may be correct on the facts, even if a broader interpretation of the defence is adopted, but all the same... Hopefully this aspect will be addressed in any appeal.

More generally, I am not absolutely against laws that attempt to curtail Nazi-like racial hate propaganda. We know from recent history how damaging this can be. Arguably, some of the state laws address that, though it is also arguable that some of those are poorly drafted and go further than is necessary. In any event, laws such as these forbid a person A from saying such things to audience B as "people who fall into class C are rats and cockroaches - let's exterminate them!"

However, the Racial Discrimination Act is not drafted in this way. Perhaps it should be. It is not a law about incitement of third parties to racial hate and possibly violence, but a law about saying things that are offensive to a second party. Perhaps there is still a place for such a law, but it will have to be a limited one. The starting point should be that we generally don't have a right to be protected from offence. Something more is required.

That is an important, if vague, ethico-legal principle, and it creates a problem when a provision of this kind is drafted and whenever it is interpreted by the courts: how far do we really want to go to protect people from being offended, as opposed to having their reputations damaged or having people incited to hate them?

So, yes, there are good reasons not to be sympathetic to Bolt. But that is not a reason to assume that the statute itself is unproblematic. It is not a reason to be relaxed about how the courts decide to interpret it. There really are freedom of speech issues here, even if the particular speech at issue was meretricious and the speaker is an unpleasant individual.


Anonymous said...

Thanks for the comprehensive analysis Russell. Particularly because I haven't had the time to read the full findings myself, but I have had reservations about it and its implications on free speech.

And thanks for teasing apart the salient elements - particularly because I feel that many who loathe Bolt have let themselves become too uncritical of the law and the finding as a consequence.

The Colonel said...

This also reinforces the point that any free speech concerns are largely independent of Mr Bolt's culpability.

So just as those who loathe Mr Bolt should not automatically defend the finding; neither should his supporters assume any free speech issues diminish the magnitude of his embarrassing journalistic fail.

March Hare said...

The whole point about standing up for freedom of speech is that you do it when you find it odious and offensive.

Speech does have limits, incitement to commit crime and defamation are two that spring to mind. But we should be wary of including things like offence (especially), insult or humiliate (satire!?!).

Legal Eagle said...

Hi Russell, I have written a detailed post taking up some of the points you make in this post: