Dr Francine Rochford
First published in the Bendigo Advertiser on 1 October, 2011.
As a general rule I would eat my own toenails rather than read an opinion piece from Andrew Bolt. That’s not personal; it applies to a lot of commentators from the other side of politics as well.
But that doesn’t mean that I don’t think Andrew Bolt should not have a right to his opinions. I also think it’s a good thing for my motor mechanic, taxi driver, hairdresser and accountant to have an opinion, and expressions of those opinions, in legal and appropriate ways, are necessary to the creation, distillation and correction of our political views.
The question arising from the current circumstances of Mr Bolt and the Herald Weekly Times is - what is the limit of the legal and appropriate expression of political views?
There’s no such thing as free speech. Despite the frequent and lazily asserted right to unfettered discourse, nobody sensible really believes that people should be able to speak without reservation.
The laws of defamation, negligent misstatement, contempt of court, various intellectual property rights – a whole range of civil and criminal laws constrain what we can say and write (and text and blog, for those of you who distinguish on the basis of medium).
These constraints might be contextualised – our employers may place quite rigid limits on how, when, and to whom we speak and write; and these limits may be enforced by contracts or a range of other mechanisms. Typically, forceful conventions, morals, manners, customs and practices place conscious and unconscious constraints on how we express ourselves.
Freedom of speech, however, as a mantra, has special significance.
This is partly an overflow from United States law into our cultural sink, but there is also limited protection for political speech implied in the text, structure and fabric of our Constitution by the Australian High Court. It is, according to the Court in Lange v Australian Broadcasting Corporation in 1997, a necessary inference from the notion of representative democracy. The protection manifests itself not as a personal right, but as a limitation on the capacities of the government to restrict political communication.
Mr Bolt’s circumstances prompt us to ask whether the federal Racial Discrimination Act is consistent with those limitations – indeed, this was a matter addressed in the judgment itself.
The Federal Racial Discrimination Act 1975 prohibits offensive behaviour based on ‘racial hatred’. This was the concept requiring consideration in Eatock v Bolt. The provisions don’t apply to acts ‘in private’, so the secret darkness in our souls is not subject to constraint – unless we blog or tweet about it, or speak of it loudly in a public place. But the Act renders it unlawful to do an act which ‘is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people;’ where ‘the act is done because of the race, colour or national or ethnic origin of the other person or of some of all of the people in the group.’
On Wednesday Justice Bromberg held that at least some of Mr Bolt’s writings were reasonably likely to offend, insult, humiliate or intimidate some of a group referred to by the court as ‘fair-skinned Aboriginal people’. The court noted that a group of people may contain ‘the sensitive as well as the insensitive, the passionate and the dispassionate, the emotional and the impassive’
Only the reactions of the ‘ordinary; or ‘reasonable’ members of the group are to be considered. Extreme or atypical reactions are disregarded. However, those representatives are to be ‘objectively attributed’ ‘characteristics consistent with what might be expected of a member of a free and tolerant society.’
Would the hypothetical representatives of this group be ‘offended, insulted, humiliated or intimidated’ by Mr Bolt’s writing?
The potential vagueness of application of this section invites comparison with Coleman v Power in 2004, in which the High Court found a Queensland Act which proscribed vagrancy as unconstitutionally broad when it criminalised the use of ‘insulting words’. The court said that if the law restricted freedom of political communication but served another interest, the question was whether the restriction was disproportionate to the interests being protected.
At the time, Justice Kirby noted that ‘[o]ne might wish for more rationality, less superficiality, diminished invective and increased logic and persuasion in political discourse. But those of that view must find another homeland.’
Nevertheless, on Wednesday, Mr Bolt was found to have engaged in unlawful conduct, despite the similarly broad reference to ‘insulting’ acts.
He may yet have been preserved from the operation of the Act if his conduct fell within ‘freedom of expression exemptions’ in the Act itself. Mr Bolt could not take advantage of that exemption because, according to the court, his articles contained erroneous facts, distortions of the truth and inflammatory and provocative language. These limitations on the operation of the Act may preserve it from claims that it is disproportionate.
The rather nice and apparently fine line between what is protected political speech and what is in breach of the Act would, of course, not be problematic if we could all be respectful about each other; at least in public.
Whilst we’re awaiting that eventuality, I’d like to address one further consideration. What are the motivations of the players in this case? At least, it’s clear that Mr Bolt and his employers aim to sell newspapers, and express opinions that, in their view, will resonate with a particular group of readers. Those with whom those opinions do not resonate will probably not bother to read them.
Of the group complaining of Mr Bolt’s conduct, however, it would be surprising if they could not find a forum to publicly address Bolt’s arguments and errors; some of them are prominent academics. Instead, the matter was debated through the Courts – the public debate was converted into a private lawsuit.
Is this an example of Strategic Litigation Against Public Participation? Whilst it is unlikely that Mr Bolt will respond with a cowed silence to the judgment, it does have the capacity to ‘chill’ activities of speech or protest of others, particularly where the line between protected and prohibited discourse is less than clear.
The text of the judgment can be found at http://www.fedcourt.gov.au/
Dr Francine Rochford is a Senior Lecturer in Law at La Trobe University at the Bendigo campus.