FREE SPEECH I: by Hal G.P. ColebatchNews Weekly
The Andrew Bolt case and free speech
, October 29, 2011
Freedom of thought in Australia has been as deeply entrenched as anywhere in the world. Now, however, a prominent journalist and blogger, Andrew Bolt, has been found guilty of a crime for expressing an opinion.
Mr Bolt’s thought crime was to question the fact that certain light-skinned people were claiming benefits as Aborigines.
He was not prosecuted for defamation (usually a civil offence anyway), but for breaching the “values” of the Racial Discrimination Act 1975, a piece of left-wing social engineering which the Howard Liberal Government, with unforgivable blindness to its potential, left in place during its last 13 years in power.
All the reasoning of the federal court’s 100-page judgement is not yet clear. One reported point, however, was that “What Mr Bolt did and what he failed to do did not evince a conscientious approach to advancing freedom of expression in a way designed to honour the values asserted by the Racial Discrimination Act.”
This does not seem particularly clear; but since when has the law of any free country obliged citizens to “honour” particular values? No court should ever be placed in the position of having to make decisions of this kind. The only way I can read this is that it criminalises the possession of a particular state of mind.
This is totalitarian. Such matters should not attract the attention of the law at all. It is reminiscent of the French Revolutionary Law of 22 Prairial (also known as the “loi de la Grande Terreur”), which sentenced people to the guillotine on the grounds of a “bad moral character”. Similar legislation has been enacted by other regimes, but always by tyrannies.
Mr Gary Johns, a former Labor Party minister, has written: “Freedom of speech has been curtailed by the Racial Discrimination Act; the judgment said as much.”
The court found that Bolt and his employer, the Herald and Weekly Times, contravened the Racial Discrimination Act 1975 because the comments were not made reasonably or in good faith. They offended the sensitivities of those about whom the articles were written.
Does this mean that courts are now to judge the degree of “good faith” with which an article is written? How is “good faith” to be defined? What is the position if an article, written with sarcastic or satiric intent, simply to make money, is found not to have been written “in good faith”?
The leaders of newspapers are written by professional journalists to reflect what the editor wants said. The leader-writer does not have to believe them, as a lawyer does not have to believe the moral rightness of a case he or she argues. (I am stating a complex ethical matter very simply here. A lawyer should not, of course, argue a criminal is innocent whom he knows to be guilty). Are these also now to be criminalised for showing “bad faith”?
And if the “sensitivities” of a small group of people are offended, what journalist is going to be safe?
The judgment argues as follows: “People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of racial or religious identification of a group of people is a common cause for racial or religious tension. A slur upon the racial legitimacy of a group of people is just as, if not more, destructive of racial tolerance than a slur directed at the real or imagined practices or traits of those people.”
This is weird. The politically correct have spent a great deal of effort trying to expunge the concept of “race”. There are many arguments along the lines that “race” cannot really be defined. Now political correctness seems to be resurrecting it. The last time I heard talk about “racial legitimacy” was … well, you know when that was.
I am not unusual among Australians in having a mixture in my ancestry — in my case English, Norman-French, Ulster Scots and Italian. I could go further and it would get more complicated. Can I now haul before the criminal courts anyone who denies this?
Journalists often make too much of both the importance and the perils of their occupation. In showing “bravery” they seldom run risks even remotely comparable to those which policemen, fire-fighters or soldiers take every day. Nonetheless, cases like this do serve to remind us that free speech does matter, and it is under constant threat. Annoying as a free press can be, it is a good deal better than the alternative.
Bolt’s offending words can never be printed by anyone in Australia again. If this is not a direct assault on freedom of speech and essential human rights, I do not know what is. Of course, how international publication on the internet is to be controlled is, as a matter of practicality, rather different.
A federal government enquiry into the press has been announced, with the Murdoch press obviously in the crosshairs. Unless the Bolt case is overturned on appeal, it seems that freedom of the press in Australia is facing a pincer-movement attack from the federal government and the courts.
The one useful thing to emerge from this is that, as with other questions where great principles are tested, it shows who is prepared to stand up and be counted on the side of liberty and who is not.
One must try to take heart from Gary Johns’ demand that Opposition leader Tony Abbott take action as soon as he wins government.
“Nothing is more sacred than free speech,” he argues. “Tony Abbott must repeal the offending provisions. He should start drafting now, flush out the freedom-loving Labor members, stand them up and have them counted.”
Hal G.P. Colebatch, PhD, is a Perth author and lawyer. His latest novel Time Machine: Troopers is available from News Weekly Books. A slightly different version of the above article was published in The American Spectator Online.