After writing on the case of Bolt v. Eatock in a couple of posts, I had the good fortune to speak to one of the plaintiffs about their motivations in taking the case.
To me, one of the most significant facts of the reaction to Justice Bromberg’s decision has been the sheer disconnection between so much of the commentary and the facts of the case (which is also a deep irony).
Missing, in particular, has been any real appreciation of the motives of the plaintiffs, as opposed to a panoply of projection, speculation and adjudication on what they ought to have done.
My piece in The Drum today tries to remedy that.
NB: Previous discussion on LP is on Rob’s thread.
Cross-posted at Sed probate spiritus.
Brilliant Mark, rebuttal of the crazy rantings of dog whistling haters has been all too thin on the ground. Good and capable men needed.
“”"”"”Dr Mark Bahnisch is a sociologist and a Fellow of the Centre for Policy Development. He founded the leading public affairs group blog, Larvatus Prodeo..
Hahahaha……
Sorry, don’t mind me, carry on.
Nice article Mark, seriously.
Absolutely first rate article, one of the best you have written and easily the best of the many [some good] I have read on these issues.
Well done.
I love the alliteration, Mark. It’s an unjustly scorned device. Well done.
Thanks, folks. I was just glad to be able to put the plaintiffs’ view.
@Hal9000 – actually, the original draft had “proffered” for “offered” in the first sentence (which I liked because it has a nice legal overtone) but I decided that was a little too much alliteration!
Thanks for this. A really good read.
Projection doesn’t even begin to describe the reaction to this case. The media have for the longest time given up on telling truth to power and have turned around to pick on the weakest members of societies. For some reason the past 15 years it would seem as if there’s been an odd minority kicking game happening with extra points scored for destroying someone while simultanously claiming the one being kicked is ‘lucky’ in some way.
I remember a time when whinging and whining was seen as anti-Australian. Now it can make you a media star.
Thanks, tssk.
I took much comfort from the responses of the comments I read in the comments thread there- very soothing.
Mark’s comments generally are” dense” enough to require a second read perhaps, for the digestion- like any substantial and hearty and nutritional roast beef dinner.
I won’t comment further just now, because there is much to be taken from it, but I would add one incidental comment.
As we know, Bolts case would be the classic text book example used in a philosophy 101 topic on Free speech.
It seems to me, not enough people have considered the rational for defamation slander etc laws- the “incitement” aspect.
We have already seen the impact on the physical well being on people, in the Muslim-bashing originating from the Albrechtsen article accusing Muslims ( and western progressives, by inference) of being “pro rape” in European communities, when the Howard government was trying to justify its crack down on asylum seekers nearly a decade ago, particularly in the wake of 11/9, against the back drop of a heavily reported pack rape case involving a mob of Muslim ( on this occasion)youths, arguably an atypical behaviour for most of that community.
The developing tendency came to fruition a few years later with Alan Jones’ incendiary incitement of a susceptible purportive “bogan” or uninformed element, ending in the Cronulla riots, which so easily could have ended in the deaths of people let alone all the hidings taken or dished out by the contending ethnic groups.
So the rational for slander/ defamation/libel in these cases can refer to personal hurts caused by deliberate untruths, but it can also be a mechanism for ensuring debate on issues on the facts and is a social defence against the chances for the emergence of another Joe McCarthy, or worse still, a Joseph Goebbells (Godwinned, but its ok; no more for now ).
Mark – great article – though casting pearls before swine if one reads the comments (always a risk on The Drum).
It emphasises a point that I got from reading excerpts of Bromberg’s judgement. He combined truth with offence – basically saying if you say things that aren’t true to make your argument, despite believing that argument, and it causes racial offence, then there are consequences. And the consequences are to emphasise publicly what is true in the place where that offence was generated.
My feeling is that those who proclaim the right to free speech the loudest are those who ignore the Kantian paradox, and who wish to traduce public knowledge to emphasise their beliefs (and are convinced there is no such thing as society in the Thatcherian sense). Those of us who, for one reason or another, have an ethical stake in public knowledge can do no such thing. Free speech and fair speech are one and the same thing (at the personal scale).
However, that is something which can only be imposed in a democracy with the greatest of care. The judgement is basically saying that some forms of offense as regulated by law are too great to allow untruths to sustain them.
As to the media enquiry, I would like to see some kind of ethical overlay and review for public knowledge, where it is possible to review on a periodic basis how the media is contributing to public knowledge. No gags, no restrictions – just a review from representatives of professional bodies with codes of ethics and a stake in the state of public knowledge, conducted in cooperation with a public media review body. Published openly and discussed (free speech!). Deciding what is epistemically defendable in that sense would need to be debated and decided.
Following up on Kitcher’s Science in a Democratic Society, I asked whether public knowledge was ever counted as a social capital. A search of published material showed that knowledge was very rarely mentioned, though education often was. They are not the same thing. Knowledge is critical to our ability to sustain a global society comprising billions of people. This is an enormous blind spot in the assessment of social sustainability.
Untrammelled free speech is a cudgel in the hands of the new barbarians. They need to be called on it.
Very interesting contribution, Mark.
Of course there was a question on this topic on Q&A last night, framed in terms of freedom of speech, naturally.
Both Ron Merkel and Richard Flanagan responded brilliantly. I particularly liked this from Flanagan: “You can see two things from space: the great wall of China and Andrew Bolt’s self-pity”.
Thanks, Roger and Adrian.
I didn’t see Richard Flanagan’s contribution because I switched off when Julie Bishop came on, but I heard about it later!
I thought Ron Merkel made a very good point – why the criticism of this legislation now?
I also thought the framing was interesting – note from both the questioner and Caroline Overington it was the same ‘individual redress’ stuff I talked about in my article, and Overington peddled the defamation line… because apparently the plaintiffs had caused problems for “us” (who?)…
Hi Mark,
It seems that I simply have a fundamental disagreement with you on what free speech means. You seem to be arguing that opinion must be grounded in fact for it to be worthy of free speech protection. I cannot take this seriously. Has a day every passed without a newspaper publishing an opinion based on demonstrably bogus facts? Do you say that all such opinions do not deserve free speech protection, and are potentially open to judicial regulation?
I am one of the apparently rare people who do defend the right to speech that vilifies based on race (or religion, or gender, or sexual preference, or whatever). It seems to me that for you to maintain your position consistently, that you must support a prohibition on distributing books such as The Protocols of the Elders of Zion and Mein Kampf. I would most definitely oppose such a prohibition.
The Andrew Bolt case has revealed to me that I’m some sort of “free speech fundamentalist”. Oh well, I’ll wear that label with pride.
Quite right Brian. The decision to take the issue up under the RDA was avowedly a political decision. The breathless wonder of those who couldn’t understand why these Aborigines wouldn’t take Bolt’s comments up as a slander, and thereby earn themselves a small fortune, is due to the inability of a lot of people to imagine even the possibility of acting in support of group solidarity rather than on the basis of individual interest.
Lachlan O’Dea: I’m sure the irony of your own words escapes you. You’d support the right to anyone of any sort of speech without apparently grasping that the last time anyone exercised that right on rather a grand scale it led to the Holocaust.
You’ve a right, in a liberal democratic society, to exercise all of your rights up to the point where the exercise of such rights impinges on the rights and freedoms of others. In this case it has been found that the right to freedom from fear of the consequences of lies, racial slander and racial disparagement trumps the right to free speech. That’s a good decision.
No-one has prevented Bolt from saying what he thinks. No-one has told him that he cannot say or write such things again. If, however, he does so again, as he is entitled to do, then it will be on the basis that there will likely be consequences for such a speech act if it can be shown that it is mere opinion, that it is not factually derived and if it can be shown that the speech act has caused or was intended to cause harm to to others on the basis of their race or ethnicity. That’s fair so long as the consequences are financial and fall short of incarceration.
@akn, it’s me not Brian who’s the author of the piece.
Lord. Can’t you guys do something about this name confusion? Sorry.
Lachlan,
You supported the Terror posting those fake Pauline Hanson pics?
Great article, Mark. Props to you for all the writing you’ve done on this issue – it’s highlighted some important issues, been a very important critique, and I hope changed some minds.
Lachlan, I’m not sure a defence of speech which is fact-free (or indeed based on lies) is even philosophically coherent. The classical liberal argument for freedom of speech has it oriented to a search for truth, and presumes, I think, as a predicate good faith.
Where is the value in vicious lies?
Lachlan
It’s very clear that no society has ever tolerated unfettered speech. A decision is always made about what speech and expression is permitted. You may be a “free speech fundamentalist” but speech and expression is restricted, by the law, for very good reasons, all the time.
Now in practice, we may well decide (and indeed I think we should) that even if some instances of speech serve no utility that anyone can identify, attempting to restrict them would lead to negative utility — i.e. in practice, we’d be worse off. Most of the time it doesn’t matter that much if people utter palpable and offensive nonsense — certianly not enough to maintain an office tasked with ferreting it out and punishing the utterers.
At some point though, one has to draw a line. An obnoxious but charismatic psychopath with a metaphoric megaphone probably needs to have the arm put on him — at least to the extent that Blot was — of being condemned as just such a person. Providing the punishment doesn’t go beyond public censure, as seems to be the case here, I don’t see that this is a violation of free speech anyway. Effectively, the ruling upholds the principle of good faith. I think 18D & 18C could have been better written, but that’s quite minor. No great harm has occurred since 1995.
When the Blot faces something like that woman in Iran who faces 12 months in gaol and 90 lashes for participating in a film deemed blasphemous, then let us have a discussion about threats to free expression.
I’m a free speech “fundamentalist” too, for both linguistic and political reasons. If you do support some limited forms of censorship, you can’t really claim to be an advocate for free speech, by definition! Being an avid atheist and a Marxist sympathizer, I know that most places of the world want to have voices like mine silenced, and silence such voices they do by the most violent of means. So, if I demand the right not to have my thoughts criminalised, which I do, I therefore, demand the same rights for my greatest enemies too. I guess, I wouldn’t mind some kind of court imposed notice of unverified claims of fact and court proven falsehoods, to be made readily available for various contentious texts, but I wouldn’t really know how a government could go about doing that. It would make a pretty interesting website though.
If public censure and no awarding of costs (people just represent themselves or get pro-bono lawyers) was the maximum penalty for opinion pieces that breached the RDA that could be issued by the judge then I’d have no problem with the law.
But that’s exactly the penalty Bolt and HWT have had imposed on them by the Court. His articles are still on the web. Anyone can read them.
Please explain how this has anything to do with freedom of speech?
It doesn’t have, and never has had anything to do with freedom of speech.
I’m afraid that anyone who claims that it does either hasn’t read the judgement, is being disingenuous or is extremely gullible.
A good starting point should be at least to read the article we are meant to be discussing.
Fundamentally, I think Bolt is a racist (just my irrelevant opinion, do I really need to list all the evidence for and against?) and he seems to have the view that you have to be beyond a certain shade of blackness to be considered aboriginal and eligible for various job positions and government benefits. I don’t know how wide a persons nose has to be, or if there has to be a certain genetic marker to be a Bolt certified Aboriginal; I don’t really want to ask. I regard his opinion with contempt, because it would have so many impracticalities and institutionalised humiliation, if it was the law. By providing examples of pale skin aboriginals in his article, he is trying to provide evidence for his point of view (that pale aboriginals who identify as aboriginal exist). This actually is his view though, as disgusting as it is, any inaccuracies in his article are kind of irrelevant filler for his disgusting point of view. Their individual circumstances and qualities as human beings are totally irrelevant as well. So, yes, I defend Bolt’s right to publish this disgusting filth, even though it is very hurtful to many people especially the individuals in question, but I think the courts made a very big mistake with this decision. It is very hard for me, but I have principles, and the right to express political ideas is pretty much the most important. Liberty has some very cruel attributes but she isn’t just my fair weather friend, and I have to fight for her not just when it is easy.
Yes, but the judge explicitly said Bolt would have had a defence of fair comment if he had got his facts right and lost the snarky, insulting tone. So he is quite able to express his opinion, and I repeat, his articles are still there on the interwebs and no one is envisaging they be taken down.
So I ask again – in what way does he have his freedom of speech infringed?
James Wakefield: there is a difference between having a view and expressing it. You seem to feel compelled to express your view about this matter, which doesn’t concern me. However, I’ll suggest to you that, like everyone else I know, you daily moderate which of your views you give expression to either in your own interests or the interests of others. I’ll warrant you do not spend every day in public and personal engagements giving vent to any or all of your views for concern of the consequences.
It seems to me that one way to work your way through the ethics of freedom of speech is to support those who exercise that right in positive and helpful ways rather than in negative and harmful ones. I suggest as well that your energetic support of unfettered rights to freedom of speech is because you’ve not yet been on the receiving end of harmful speech. That experience, where it does real harm, is a perspective changing event.
Great article Mark. It made the complexities of this issue clearer and it was good to get an understanding of the plaintiffs’ pov and their reasons for the legal direction they took.
I think they were very brave to take him to task.
His “article” was meant to deliberately misinform, manipulate and inflame his gullible and malleable acolytes’ racism and misogyny, but for once the biter was bit.
And like the spiteful, cowardly bully he is, he’s sooking because he was caught and punished. (Not nearly enough, imo, but you take what you can get.)
For all those defending Dolt’s right to “freedom of speech”, I would ask if they would be quite so keen on his “right” if they were the object of his free speech, as they must be aware that he would knowingly and intentionally lie about them?
I also wonder if the self pitying Dolt would be quite as keen on “freedom of speech” if he were the object of the same collection of lies, distortions and misinformation he peddles?
I suspect self righteous cant would reach unprecedented levels.
It would appear not as he seems to be notoriously thin skinned, by all accounts.
This is about freedom of speech because of the chilling effect that this judgment (potentially) has on future articles (most likely by the smaller players rather than Bolt), and the specific usage of anti-discrimination legislation, it creates a feeling that certain thought is unacceptable. While the toothpaste can’t be put back in the tube and this article is still available to read, it has been declared illegal. Although, part of me likes the idea if it reduces racist sentiment and scares people out of expressing racist ideas, I can tell that this is fundamentally violating freedom of speech, and I can’t have it both ways. It would be easy to gloss over and appreciate that the judge has explained how this is not censorship and how Bolt’s Freedom of Speech has not been curtailed (but then finding that Bolt’s article is breaking the law). Many seem to think that government is extremely powerful and secretly controls the Media as it is. I really think that it is best if it doesn’t interfere at all. I want to believe that this judgment is not attacking free speech, and it is a fair cop for an undeniably despicable character. I read Mark’s article and it was so well laid out and I felt myself agreeing. My clinging to the principle of free speech as a boolean dogmatic absolute, core to my foundational beliefs, is the only thing that is stopping me from agreeing here.
James Wakefield: I call concern troll.
James, you really are jumping at shadows here. The government has not “interfered” in anything. The government had no role in the case, or the judgment. The government was not the plaintiff. The case was considered and the verdict was delivered by an independent court, and the decision is appellable. It was a civil case. Between citizens, carrying out a dispute in front of an independent judge — which is one of the privileges of being a citizen of a country that operates under rule of law.
Furthermore, we don’t actually have a protected right of free speech in this country.
So your objections on the grounds that government interfered with free speech are moot.
Great article Mark. Nice to see something written by someone who has actually spoken to some of the people involved in the case.
Thanks, Mindy!
Very nicely evaluated and expressed, Mark. Yet again aboriginal affairs take a far more highly principled position than the crass argy bargy of our European Culture of personal commercial and political self interest.
“dignified” was the other word that I was scratching to find.
I am not a Concern Troll, this is my real name and I have never deliberately tried to derail a thread (or jerk the sewing machine so that the thread becomes misaligned or something — if mixed metaphors cause distress). I do have a tendency to write more about topics that are a little more uncomfortable for me or are little more controversial, I probably should try and do a few more supportive comments, because I read this blog all the time and appreciate many of the posts but don’t often write comments. So perhaps I’m a bit of a contrarian, but not dishonest and certainly I don’t have an agenda other than developing and refining my political knowledge. I really do appreciate the work done here.
The legislative arm of government created a law which violated the principle of free speech which this country legally does not respect, but many like myself strongly believe that it should. The judicial arm of government enforced this bad law. A political text (a rather limp pathetic one) is declared to be against the law, therefore government has interfered in an individual’s liberty. I hope that this might lead to conservatives understanding the need for a Bill of Rights. Sure, it seems that it hasn’t been a very successful attempt at silencing him as this action seems to be rallying a very unsavoury group of people into a frenzy, and people like myself are strangely compelled to support them as a matter of principle.
There used to be an anarchist book store up the road from me, with typical posters of George W. Bush in cross-hairs. Distasteful, violent and scary, but irrelevant, no government seemed to be watching them or caring, no shoppers seemed to be buying either. They closed down, not from government pressure, but their own apathy and lack of supporters. Sincere and patient rebuttal is what brings down the likes of Bolt. Listing all his fallacies and outright lies should have been enough. Actions like this lawsuit, are making this moron a superstar, and the fact that he is a liar is forgotten.
Alright then, I retract the comment.
NB: the doctrine of the separation of powers is alive and well in Australia; the Executive and the Judiciary are not related entities. All I can offer at this stage is that you’re concern to protect freedom of speech is misdirected when it defends on principle a liar and a scoundrel like Bolt. I support freedom of respectful speech and therefore never find myself in the moral quandary that you have created for yourself.
akn said:
This case shows that even disrespectful speech is not in practice fettered, even by the judiciary. As we’ve noted a number of times, the text is still available. I’ve not heard anyone from the state or the judiciary even propose it be removed. A clarifying note may be attached, linking to the judgement. What we have is free speech with a free bonus, further information that unlike the article, is accurate. This clarification clarifies matters that in Blot’s opinion, were “of no great consequence”.
Try as I might, I can’t see that James Wakefield’s fundamentalism can be triggered here. No speech had been redacted or discouraged. At “worst” someone really precious might be fear making recklessly false claims, and self-censor. I don’t call that state censorship. I call that a good outcome, like the person who chooses not to foul a lift with flatus for fear of embarrassment.
oops {At “worst” someone really precious might
befear making recklessly false claims} (as opposed to those who avoid making recklessly false claims out of self-respect …)Mark raises a great point regarding the lack of media discussion about the plaintiffs’ motives.
On my own blog, The Failed Estate, I’ve come at it from another angle – the lack of debate about the shoddy journalism that led to the case.
http://thefailedestate.blogspot.com/2011/10/gag-reflex.html
Q. Why can’t a fundamentalist ever win the big one?
A. They can’t get past the qualifiers.
The Boltist version of “freedom of speech” would require the repeal of the defamation laws. Just another form of egotistical monopolistic behaviour.
@28
” it has been declared illegal”
No it hasn’t. He could do it again if he wanted to and he may, or may not, receive a penalty. It’s not like fraud or murder which are categorically illegal.
Fran said:
Well perhaps you can clear something up for me. My understanding is the factual mistakes that Bolt made were an aggravating factor but weren’t actually required for him to be in contravention of the act. Is that not correct?
Or to put it another way, if Bolt made claims in an opinion piece that he believes there are some fair skinned people who identify as aboriginal to gain advantage (in his usual controversial style) but he did not make any factual errors about the people he discusses then he would not be found in contravention of the RDA?
There is that reasonabless requirement in the RDA and I suspect there’s a lot of people out there who consider many of Bolt’s columns quite unreasonable, but they’re not related to race so no action can be taken.
That’s pretty much correct. He’d be entitled to the “fair comment/good faith” defence under the Act. Bolt blew that defence by making a shitload of factual errors (due to sloppy research) and snide insinuations (because he just couldn’t help himself).
Gummo – but he also has to pass the “reasonable” test too doesn’t he? From reading articles from people like Holmes on this, that is the bit they are worried about. Defamation doesn’t have the reasonable requirement,
This excerpt from the judgement seems to me to be relevant:
Mark @46, quite so. Bolt wrote things about the plaintiffs which not only weren’t true, but which he had no good reason to believe to be true, and which he would have found to be untrue had he done his basic due diligence as a journalist.
Mark – I think the bit about reasonableness in the legislation refers to whether the commentary itself is reasonable, not whether reasonable care has been taken to establish that what they print as facts is actually true. I’m not saying that the judge didn’t believe that reasonableness is not important when doing research about the facts, I just don’t think the legislation is *only* referring to the facts when it covers reasonable and fair comment.
Bolt’s case is a pretty poor test case to argue over. But as I said in another thread I think it has brought a lot of reporters out because of their concerns about how it *could* be applied. People like Holmes have made it clear they’d rather not appear to be supporting Bolt in any way.
But you don’t have to look far to see where legislation covering what people are allowed to say from even nominally democratic government is used for political purposes – eg Singapore where defamation laws are routinely used to bankrupt opposition candidates so they are not able to participate in elections. So I think its worthwhile looking at what how legislation could be used if you had a government or section of the community that was willing to use anything that would look vaguely legal to gain power.
It’s unfortunate that none of the critics of the judgement or the proponents of unfettered free speech seem to have bothered to read the judgement.
I’ve read quite a few judgements over the years, and this is one of the most clearly and carefully argued that I have come across.
Maybe we should run a sweep on how many e-mails Ben Naparstek has had from Andy threatening him with a defo suit over Anne Summers profile of him in the latest edition:
Gummo – too late to run a sweep – according to Bolt, The Monthly have withdrawn that article, presumably over defamation threats
Chris @ 51 – I read that at Bolt’s blog too. But it’s on The Monthly’s site today. Well, the first 1,000 words or so are. For the rest you’ll have to nick down the library and check out the magazine.
Yes, well, Bolt is wrong there. The article just went behind a paywall when the print edition came out (which is normal practice). After Bolt’s claims, it was made available free online again for 24 hours. None of it has been altered, and The Monthly hasn’t been sued.
It just goes to show you can’t trust what Bolt says – even about matters about himself, it would seem!
http://www.crikey.com.au/2011/10/10/blow-ups-aplenty-at-home-with-the-bolts/
Heh, can’t even trust what Bolt says about topics on himself
Mark – sorry missed you saying exactly the same thing
No worries, Chris!
Meanwhile, Paul Kelly opines:
http://www.theaustralian.com.au/national-affairs/opinion/abbott-should-seize-free-speech-as-election-issue/story-e6frgd0x-1226164283200
Chris, has The Monthly actually withdrawn the article, or is Blot just making shit up again?
re Crikey link, Bolt is a story that just keeps giving.
” what a tangled web
we weave,
when first we practice
to deceive.”
As has been mentioned, Drs Summers, Manne and others have slants on what it’s all about, they are behind paywalls, but there is enough in the samples to see catch a glimpse of this rather eccentric, lop-sided person, his family and employers and his egocentric traits and behaviours.
Paul Kelly really is a clown.
Mark, you noted the ‘great power exercised by the media in shaping and reinforcing opinion’ and one could add ‘prejudice’. Since this judgement came down I have noted, the following designations in the print press:
‘Aboriginal lawyer and academic Professor Larissa Behrendt: Marcia Langton, aboriginal academic and scholar: Aboriginal author & academic Doctor Jackie Huggins.
In none of these cases did the context require the epithet ‘aboriginal’ whereas ,say, an activist would probably require an apprpopriate adjective – human rights, environmental etc.
I cannot think of any other ethnic group in our rich multicultural mix where it would be appropriate or acceptable to to describe an Australian citizen by their ethnicity; is there a dog whistle at work here ?
@60 – wantok, yes.
@58 – David, see my comment at 53.
Great piece Mark. I lecture law and even had to remind colleagues of some of this (even, or especially ones who were civil libertarians).
But so often have the terms ‘committed’ and ‘guilty’ of causing racial offence been misused, some think that Bolt was found to have committed an offence in the criminal law sense.
The other point that be/a/muses is that once upon a time, conservative values would have meant expecting professionalism and a modicum of respect in public debate, and a judgment like this would have raised questions within a media organisation over disciplining a writer.
Sorry, Mark. When I made that comment, Chris’ was the most recent on the page.
@63 – Graeme, thanks.
It is incredible how misunderstood this case has been.
As I understand it, Dolt was well aware of the truth, but instead chose to publish lies, distortions and innuendo about the plaintiffs, to which they quite rightly took exception.
They won, he lost. It has nothing at all to do with free speech, when that speech is deliberate lies from start to finish.
He wrote a propaganda piece, but is too dishonest to acknowledge it.
And for all his cant, he’s not too keen on anyone else having the right to free speech, even if it’s the unvarnished truth. He is a hypocrite and a liar, and that is the truth.
Bolt makes my skin crawl!