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Bolt

September 28th, 2011

An open thread on this topic. Obviously, please avoid anything that might be seen as defamatory, either of Bolt, the plaintiffs, other commentators or anyone else.

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  1. Martin Spencer
    September 28th, 2011 at 21:08 | #1

    Is anyone aware of any ‘darker skinned’ Aboriginals who agree with Bolt’s articles? I wouldn’t be surprised if there were many who agreed with him. If that were the case wouldn’t that rather undermine the idea that it is racially discriminatory?

  2. Ron E Joggles
    September 28th, 2011 at 21:42 | #2

    Hmm, “wouldn’t that rather undermine the idea that it is racially discriminatory?” I don’t think so, Martin. Bolt’s stated views are objectionable, regardless of who agrees with him.

    And having lived among Aboriginal people for most of my life, and as the father of light-skinned indigenous girls, I can’t think of any black fellas who would agree with him.

    If you are raised in an Aboriginal family that is part of an Aboriginal community, and you’ve seen your family put up with or react to the casual unthinking discrimination that Aboriginal people encounter every day, you’ll consider yourself Aboriginal no matter how pale your skin.

    The irony of this issue is that it’s not so long ago that light-skinned Aborigines were not white enough for people like the execrable Bolt, and now that his ilk thinks there are benefits to be had from Aboriginality, they are not black enough.

    I used to think that Bolt expressed his extreme reactionary views because it was good for business, and that he probably didn’t really believe the tripe he writes – I thought he couldn’t actually be that stupid, but seeing his reaction to the the judgment today, by crikey his dismay might just be genuine.

  3. Donald Oats
    September 28th, 2011 at 21:43 | #3

    Who is not offended by Bolt’s commentary is not of particular consequence in deciding whether Bolt has transgressed or not; the issue is who was offended. I appreciate the point you are trying to make, Martin Spencer, but repudiate it.

    Some media commentators, who are arguing in favour of Bolt’s “alleged right” to say whatever he damn well pleases, have come up with the “But only Bolt knows his intentions (eg to offend, to hurt, or, to innocently bring to light an issue that is in the public interest) so we cannot argue to his intent” line. As skewered brilliantly on the ABC Drum, if this was correct, then Bolt’s original articles fail by dint of presuming the motives of the offended parties, ie in their assuming an `Aboriginal Identity’. If Bolt’s motives are not to be presumed, nor should be the motives of those who were the subject of Bolt’s diatribes.

    He cooked his goose, and now he has to lie in it…

  4. TerjeP
    September 29th, 2011 at 00:17 | #4

    I thought the Bolt articles were a perfectly reasonable contribution to public discourse. I fully expected him to be acquited. Given that he wasn’t I’m kind of mad as hell with the law. Action needs to be taken to remove this law from the statute books. What has happened today is fundamentally wrong. That large slabs of the left (with some notable exceptions) can’t see this shows the hollowness of the moral superiority they claim. On Larvatus Prodeo we got the following gem in comments:-

    Free speech, like free labour, is a myth of the right. An individual can no more express herself than individually negotiate a fair wage. Workers in knowledge are attracted to the ideal of free speech and forget that all public discourse is part of the struggle.

  5. sam
    September 29th, 2011 at 00:49 | #5

    @TerjeP

    I’ve been fascinated to watch the decline of liberal civic values here.

    1) The law should not be used as a device to humiliate ideological opponents.

    2) Andrew Bolt did not display racial prejudice.

    3) People should be allowed to adopt racist positions in general. The rest of civil society should be allowed to censure (but not censor) such positions.

  6. sam
    September 29th, 2011 at 00:50 | #6

    @Donald Oats
    Donald, this would only mean his article was silly, and based on flawed analysis. It’s a long way to go from there to banning it.

  7. Freelander
    September 29th, 2011 at 02:45 | #7

    @Donald Oats

    I certainly have no desire to defend Bolt… That said, there is a difference between a silly individual presuming motives when expressing a view and a court presuming motives when issuing a judgement.

    Court judgements, and the presumptions on which they are based, can lead to sentences. In this context, dubious presumptions are generally far more dangerous than when they are when included in silly statements.

  8. rog
    September 29th, 2011 at 04:21 | #8

    Having read some of the judgement, I do not see any attack on *free speech* and the judgement makes that point. Free speech does not allow people to publicly slander, libel or impugn without responsibility.

    I have observed that it is important that nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people. I have not found Mr Bolt and the Herald & Weekly Times to have contravened section 18C, simply because the newspaper articles dealt with subject matter of that kind. I have found a contravention of the Racial Discrimination Act because of the manner in which that subject matter was dealt with.

  9. Freelander
    September 29th, 2011 at 04:51 | #9

    @rog

    Free speech doesn’t allow that. And if Bolt had done that why didn’t they use the law that covers libel? The learned judge should have been quite specific about what exactly it was about the manner that contravened the section. I haven’t read the judgement but I hope he did have something much more specific to say.

    “I have found a contravention of the Racial Discrimination Act because of the manner in which that subject matter was dealt with” is not nearly good enough, as it says little more than I have decided that he broke the law.

  10. Durutti
    September 29th, 2011 at 06:52 | #10

    If you are having trouble getting your head around the Bolt matter try this. It wasn’t an attack on free speech just dreadful journalism. http://m.theage.com.au/opinion/society-and-culture/freedom-of-speech-rides-on-20110928-1kxaa.html If they had sued for defamation like Tony Abbott against Bob Ellis ( $277,000 payout. attack on free speech?) they would all be richer today.

  11. rog
    September 29th, 2011 at 06:52 | #11

    @Freelander The learned judge gave many reasons not least

    The facts in question have not been proven to be true. To the contrary, in relation to most of the individuals concerned, the facts asserted in the Newspaper Articles that the people dealt with chose to identify as Aboriginal have been substantially proven to be untrue. Nine of the eighteen individuals named in the Newspaper Articles gave evidence. Each of them had been raised to identify as Aboriginal and had identified as such since childhood. None of them made a conscious or deliberate choice to identify as Aboriginal.

    Bolt and his gang of supporters are claiming the right to spread untruths freely and without restriction and without consideration of the individuals freedom.

  12. TerjeP
    September 29th, 2011 at 07:35 | #12
  13. rog
    September 29th, 2011 at 07:41 | #13

    @TerjeP He is unable to see past his ego, it’s all about Andrew.

  14. TerjeP
    September 29th, 2011 at 08:01 | #14

    @rog

    You can’t see past his ego. For you it’s all about Andrew.

  15. PB
    September 29th, 2011 at 08:04 | #15

    Terje said “I thought the Bolt articles were a perfectly reasonable contribution to public discourse.”

    Not really. David Marr has it right. It’s not about free speech, it’s about sloppy journalism. The attack by Bolt on Larissa Behrendt is perhaps the most egregious example. He claimed she chose to become Aboriginal whereas she was brought up as one from birth. He claimed she had a German father whereas she had an Aboriginal father. He consistently made errors which he peppered with gratuitous insults (sneeringly referring to her as “mein liebching” is probably the most memorable).

    For it to be a “reasonable contribution” it needed to be based on facts. It wasn’t. It was vicious, poorly researched character assassination. In other words, sloppy journalism.

    Marr’s article, which lists some of the worst of Bolt’s errors, is at http://www.theage.com.au/opinion/politics/in-black-and-white-andrew-bolt-trifled-with-the-facts-20110928-1kxba.html

  16. Freelander
    September 29th, 2011 at 08:22 | #16

    @rog

    The judge’s statement is ridiculous. While their upbringing may have been to identify themselves as Aborigine, adults are not automatons; as adults they choose what they identify as. To say that “None of them made a conscious or deliberate choice to identify as Aboriginal” is simply absurd. They would be strange adults indeed if they didn’t make such choices. Yet again a judge making it up. I don’t have any problem with them identifying themselves as Aborigines or Martians for that matter. And I don’t really care why they make that choice, whether for reasons of habituation due to upbringing, familial feelings or whatever, or through choice for other reasons. But likewise, I don’t have any problem with Bolt suggesting the motives he did for their choice. If there was something wrong with that suggestion under the laws of libel, I would have no problems with him having been sued successfully using those laws. The law he was assaulted with is bad, dangerous and unnecessary law. There were plenty of laws without that one providing satisfactory limitations on freedom of speech.

    Freedom of speech is important, and is all about letting people say things we don’t agree with or like. And Bolt happens to say a lot that I don’t agree with or like. If those things we don’t like to hear are suppressed and those who say them are made martyrs, the suppression and martyrdom provides them with an undeserved validation, and protects them from being defeated in debate. Without debate those who casually hold views we would suppress never have to hear strong arguments against them.

    My objection to Bolt and his ilk is not his saying things I don’t agree with or like, but that he has a platform that only he and his ilk have access to, the Murdoch media. To me, that is not freedom of speech, that one media mogul owning 70 per cent of the press can ensure contrary voices, the voices he doesn’t agree with or like, are only heard as a whisper simply by denying access. This imbalance is what ought to be addressed, and if it were, Bolt’s ravings would hardly be worth worrying about.

  17. TerjeP
    September 29th, 2011 at 08:51 | #17

    Freelander – people are not forced to buy Murdoch papers. They choose to because out of the mix available they find something of worth in them. One might have been able to once argue that there were serious barriers to entry but in the digital age they are all but gone. In fact globally Murdoch is bleeding money because people prefer the free alternatives offered by the new media. Nobody is being silenced by Murdoch. However obviously some people get ignored by the mainstream. Possible because they are not offering what the mainstream want. We all should have the right to free speech but that does not mean others must listen.

  18. TerjeP
    September 29th, 2011 at 08:54 | #18

    Defamation law ought to go also. It presumes that people own their reputation. What I think about you is not your property. If my opinion of you get’s lowered what is changed is something that belongs to me not something that belongs to you. You have no moral claim over my opinion.

  19. Freelander
    September 29th, 2011 at 09:03 | #19

    @TerjeP

    Likewise, you are not forced to breath air and whats in it. Entirely a matter of choice.

    Wouldn’t it be great if we had more choice of newspapers in Australia? I know. We could force that American to divest his Australian holdings. I’m not keen on a foreigner owning so much of our media anyway.

  20. Chris Warren
    September 29th, 2011 at 09:06 | #20

    Of course Terje reckons:

    I thought the Bolt articles were a perfectly reasonable contribution to public discourse. I fully expected him to be acquited.

    And so these folks can only ramp up the verbal violence;

    I’m mad as hell, Free speech! free speech! (for selective capitalist newspapers running agendas).

    In a civilised multi-cultural society, once an anti-Discrimination Act has been passed, then public conduct needs to be lawful. If you don’t agree then you need to go through the normal social movement, political party, lobbying process to change it.

    Bolt didn’t – he deliberately confronted the law and multicultural society, based on his (and newspapers) individual agenda.

    All this just goes to underline just how anti-social and disruptive these few rightwing ideologues in fact are.

    The fact that Terje fully expected Bolt to be acquited, and is now over reacting, is weird given all the false statements revealed in the court case. Why should any newspaper have the right to free speech of false statements for political purposes.

    What do they want? – forget parliamant, forget the law and courts – all power to Capital?

  21. gerard
    September 29th, 2011 at 09:15 | #21

    If Bolt’s article had just been honest racism (without deliberate lies about particular individuals), he wouldn’t have been found guilty.

    7. Section 18D exempts from being unlawful, conduct which has been done reasonably and in good faith for particular specified purposes, including the making of a fair comment in a newspaper. It is a provision which, broadly speaking, seeks to balance the objectives of section 18C with the need to protect justifiable freedom of expression.

    23. I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language.

  22. Freelander
    September 29th, 2011 at 09:20 | #22

    @TerjeP

    Defamation is about saying things about someone that would damage their reputation that you cannot prove to be true. Defamation need make no presumption that you own your reputation. What is sufficient is understanding that damaging your reputation will likely damage you. Defamation law doesn’t make any claim over whatever goes on in your head. Only over what comes out of your mouth, your pen, or keyboard.

    If you tell lies about someone that would tend to damage their reputation then clearly you have done them harm and surely it is perfectly reasonable that they have a cause of action.

  23. Freelander
    September 29th, 2011 at 09:25 | #23

    @gerard

    Have you got the part of the judgement where it says Bolt told deliberate lies? If Bolt was guilty of all these things they should have gone after him for libel.

  24. gerard
    September 29th, 2011 at 09:30 | #24

    They could probably have made more money with a defamation case.

    But I think they wanted to make a political statement, have Bolt convicted as a racist liar (not just a regular liar), and set a legal precedent demonstrating that the RDA had this sort of power.

  25. Watching the Deniers
    September 29th, 2011 at 09:48 | #25

    Having watched how Bolt has distorted climate science and help misinform the public, I’m actually pleased he recieved this slap on the wrist.

    Let’s put it context.

    Bolt is Australia’s highest circulated newspaper columnist. He has the backing of the world’s largest media empire. He has a spot on channel 10 every Sunday morning.

    Freedom of speech? Yes.

    Freedom from responsibility? No.

    The judgement is a corrective to the lies, fallacies and outright fabrications Bolt published through major media channels.

    Bolt is typical of the right wing bullies and idealogues at News Ltd.

  26. Chris Warren
    September 29th, 2011 at 09:51 | #26

    @gerard

    Yes I suppose it was pure Left politics at its best – viz the principle is more important than the dollars.

    This action has advanced Australian society. The plaintiffs are heros.

  27. J-D
    September 29th, 2011 at 10:14 | #27

    @Freelander Some of the facts relied upon as the basis of the comments made about motivation have been proven to be untrue.
    In the first article (1A-21), Mr Bolt wrote that Ms Heiss had won “plum jobs reserved for Aborigines” at each of three named institutions or enterprises. Each of those assertions was erroneous. Mr Bolt accepted that they were wrong because they were exaggerated. One of the positions that Mr Bolt claimed Ms Heiss had won as a “plum job” was a voluntary unpaid position. The other two positions were not reserved for Aboriginal people but were positions for which Aboriginal people were encouraged to apply.
    Mr Bolt wrote that Ms Eatock “thrived as an Aboriginal bureaucrat, activist and academic” (1A-28). The comment is unsupported by any factual basis and is erroneous. Ms Eatock has had only six to six and a half years of employment since 1977. In the case of Ms Eatock, Mr Bolt also suggested in the first article that she identified as an Aboriginal for political motives after attending a political rally (1A-27). That statement is untrue. Ms Eatock recognised herself to be an Aboriginal person from when she was eight years old whilst still at school and did not do so for political reasons.

    http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html

    Paragraphs 380 to 382

  28. J-D
    September 29th, 2011 at 10:18 | #28

    @Freelander When the Newspaper Articles are analysed, what is apparent is that the individuals who are examined are dealt with in one of two ways. The first is where no cultural reference is made at all and the individual’s identification is examined purely by biological considerations, either through ancestry, skin colour or a combination of the two. Alternatively, both a biological and a cultural reference (usually oblique) are made in relation to the individual, but in every case the cultural reference suggests a non-Aboriginal cultural upbringing. Thus, in the first article:
    “raised by her English-Jewish mother” (Cole) (1A-2);
    “Culturally, she’s more European” (Sax) (1A-6);
    “Yet her mother, who raised her in industrial Wollongong, is in fact boringly English” (Winch) (1A-11);
    “she was raised in Sydney and educated at St Claire’s Catholic College” (Heiss) (1A-19);
    “from the age of 10 was a boarder at a Victorian Catholic school” (Dodson) (1A-32);
    “having been raised by her white mother” (Behrendt) (online version of 1A);
    “raised by her white mother” (Behrendt) (2A-20); and
    “raised by her English mother” (Cole) (2A-24).
    Thus, the reader is presented with some cultural references. The reader is not likely to assume that cultural reference was regarded by Mr Bolt as irrelevant to his opinion about racial identification. To the contrary, the reader is presented with an opinion which appears to be based, at least in part, upon cultural references as an indicator of race. The reader would presume that as a journalist, Mr Bolt would have undertaken research and presented relevant facts. The fact that some research about cultural background has been undertaken is evident. In that context, the reader would understand the assertion conveyed that the individuals are not sufficiently Aboriginal to be genuinely self-identifying as Aboriginal, to be based upon Mr Bolt’s research of both biological and cultural considerations.
    In part, the cultural references where given, were erroneous. But more fundamentally, the Aboriginal cultural upbringing which was available to be presented at least in relation to nine of the eighteen individuals dealt with by the Newspaper Articles, was not included. Those facts were relevant, in the context of a comment in part based upon cultural considerations. Their omission meant that the facts were not truly stated. For that reason also, the offensive imputation was not a fair comment.
    The omission of those facts is also relevant to the issue of reasonableness and good faith. The omission occurred in circumstances where the facts were likely to be either publicly available or readily obtainable, including by Mr Bolt contacting the individuals concerned. Mr Bolt presented evidence of having undertaken some online research about the individuals, but it was not evidence upon which I could be satisfied that a diligent attempt had been made to make reasonable inquiries.
    Dr Atkinson was raised in an Aboriginal fringe camp on the ancestral lands of his Aboriginal ancestors. Mr Clark was raised as Aboriginal in a well-known Aboriginal community in Victoria. Both those witnesses and others, gave evidence that their life story and identification was available on the internet. All of Ms Eatock and her witnesses gave evidence that Mr Bolt had failed to contact them to ascertain their circumstances and that if contacted they would have told Mr Bolt of their circumstances as described in their evidence. In Mr Clark’s case, he was also well known to Mr Bolt. Mr Bolt had written about him for over a decade.
    There is other evidence which also suggests to me that Mr Bolt was not particularly interested in including reference to the Aboriginal cultural upbringing of the individuals he wrote about.
    Mr Bolt wrote that Ms Cole was raised by her “English-Jewish” or “English” mother (1A-2; 2A-24). That statement is factually inaccurate because Ms Cole’s Aboriginal grandmother also raised Ms Cole and was highly influential in Ms Cole’s identification as an Aboriginal. He wrote that Ms Cole “rarely saw her part-Aboriginal father” (1A-3). That statement is factually incorrect. Ms Cole’s father was Aboriginal and had been a part of her life until she was six years old. Ms Cole later lived with her father for a year whilst growing up.
    Mr Bolt’s documentary source for the statements he made in the articles about how Ms Cole was raised, expressly referred to the involvement of Ms Cole’s Aboriginal grandmother in Ms Cole’s upbringing. It quoted Ms Cole attributing to her grandmother the fact that she felt “staunchly proud and strong” about being an Aboriginal person. Mr Bolt disingenuously explained the omission as due to a lack of space.
    He also relied on that reason for the lack of cultural reference given in relation to Prof Behrendt. The factual assertions made that Prof Behrendt was “raised by her white mother” (2A-20) were also erroneous. Prof Behrendt’s Aboriginal father did not separate from her mother until Prof Behrendt was about 15 years old. Her father was always part of her family during her upbringing, even after that separation.
    In my view, Mr Bolt was intent on arguing a case. He sought to do so persuasively. It would have been highly inconvenient to the case for which Mr Bolt was arguing for him to have set out facts demonstrating that the individuals whom he wrote about had been raised with an Aboriginal identity and enculturated as Aboriginal people. Those facts would have substantially undermined both the assertion that the individuals had made a choice to identify as Aboriginal and that they were not sufficiently Aboriginal to be genuinely so identifying. The way in which the Newspaper Articles emphasised the non-Aboriginal ancestry of each person serves to confirm my view. That view is further confirmed by factual errors made which served to belittle the Aboriginal connection of a number of the individuals dealt with, in circumstances where Mr Bolt failed to provide a satisfactory explanation for the error in question.
    Mr Bolt said of Wayne and Graham Atkinson that they were “Aboriginal because their Indian great-grandfather married a part-Aboriginal woman” (1A-33). In the second article Mr Bolt wrote of Graham Atkinson that “his right to call himself Aboriginal rests on little more than the fact that his Indian great-grandfather married a part-Aboriginal woman” (A2-28). The facts given by Mr Bolt and the comment made upon them are grossly incorrect. The Atkinsons’ parents are both Aboriginal as are all four of their grandparents and all of their great grandparents other than one who is the Indian great grandfather that Mr Bolt referred to in the article. Mr Bolt did not seek to deny the evidence of Aboriginal ancestry given by the Atkinsons but insisted that their ancestry was accurately conveyed by the statements made and extracted above.
    The documentary source upon which Mr Bolt relied for his statement that Ms Eatock only started to identify as Aboriginal “when she was 19 after attending a political rally” (1A-27), was in evidence. That source made an incorrect assertion as to when Ms Eatock began “publicly” identifying as Aboriginal. Mr Bolt repeated the error as to age (for which no complaint is made) but left out “publicly”. The absence of that word created the false impression that Ms Eatock had not identified as an Aboriginal person before she was 19 years old and only upon attending a political meeting. In his evidence, Mr Bolt was unimpressively dismissive of the significance of that omission.

    http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html

    Paragraphs 396 to 407

  29. NickR
    September 29th, 2011 at 10:53 | #29

    I don’t think that the free speech defense of Bolt makes much sense. The reason why free speech is so important is that it informs public debate. Deliberate lies can only misinform public debate and therefore in my eyes serve no public purpose.

    Further unfettered free speech can clearly impact upon liberty and I think this makes the libertarian defense incorrect. For example using public or social media, it would be easy to circulate a lie that some individual is, say, a pedophile. Obviously if done effectively this could be immensely damaging to the victim.

    My understanding (which admittedly is a bit vague and hazy) is that the law attempts to maximize both freedom of speech and the corresponding trade-off which is freedom from defamation. This can be done precisely and it seems like a very uncontroversial idea which should receive widespread support.

  30. Tim Macknay
    September 29th, 2011 at 11:02 | #30

    And if Bolt had done that why didn’t they use the law that covers libel?

    I have difficulty understanding why people keep raising this as some sort of objection. Clealry the plaintiffs had two options in this case – they could have filed suits for defamation, or they could use the provisions of s18C of the Racial Discrimination Act (which resembles defamation in many respects). They chose the latter, possibly because they could file a class action, rather than multiple individual actions, which would have been required if they had used the defamation law. In terms of the justice of the matter, the result is essentially the same – the articles were defamatory, and in breach of the Racial Discrimination Act. The decision to rely on the Racial Discrimination Act probably had the significant public benefit of saving Court time and public money, when compared with the prospect of multiple defamation suits.

  31. gerard (not gerald)
    September 29th, 2011 at 11:03 | #31

    For example using public or social media, it would be easy to circulate a lie that some individual is, say, a pedophile. Obviously if done effectively this could be immensely damaging to the victim.

    Maybe somebody should do this to Terje and see if he changes his mind about defamation law.

  32. Sam
    September 29th, 2011 at 11:08 | #32

    There was an old joke in the USSR. In Russia we have freedom of speech. In America they have freedom after speech.

    What Bolt said shouldn’t have to be journalism. He should be able to express any opinion he likes without government thugs interfering.

    Perhaps you know the famous line arguing for limitations on free speech, “No one should be allowed to shout ‘fire!’ in a crowded movie theatre? ”

    That was made by Oliver Wendell Holmes, Jr. in the United States Supreme Court case Schenck v. United States in 1919. He was writing for a unanimous Court, ruling that it was illegal for a group of Jewish antiwar activists to distribute flyers opposing the draft during World War I.

    The sentiment was overturned in Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot). I say the USA has this one exactly right. The rest of the world just isn’t civilised on this score.

    I’m actually kind of flabbergasted so many people have been wrong on this. I’m a collectivist on the responsibility people have to help (and abstain from harming) others. On freedom of conscience, freedom of thought, and freedom of expression though, uncompromising individualism is the only possible way to run a decent society.

  33. rog
    September 29th, 2011 at 11:20 | #33

    @TerjeP The fact that the Murdoch papers are, on one level, loss making ventures is irrelevant.

    As for nobody being silenced by Murdoch, there is evidence in the UK that Murdoch used his papers as weapons against politicians.

  34. Sam
    September 29th, 2011 at 11:21 | #34

    Here’s the interesting case of Ezra Levant from Canada a few years ago. http://www.youtube.com/watch?v=AzVJTHIvqw8

    His case was perhaps even more clearly a travesty of justice than Bolt’s. He was hauled before the Alberta Human rights commission for the high crime of “offending” Mohammed after republishing the Danish cartoons.

    There’s a fieryness and anger in his voice that really inspired me when I first saw it. It’s what caused me to believe the modern Left is not the sole intellectual heir to the 18th century Enlightenment. Modern libertarians are often their own worst enemy when it comes to self promotion, but so called progressives could learn a lot from them.

  35. NickR
    September 29th, 2011 at 11:36 | #35

    Wrong Sam? You history of the law in the U.S. does not support the very strong conclusion that you draw here.

    Surely you would acknowledge that unfettered free speech at least has the potential to be antisocial (to some degree) as well as socially beneficial? (see my example above).

    A trade-off exists between the desirability of freedom of speech and the desirability of freedom from defamation. We can argue about where the optimal point is, but the idea that this trade-off doesn’t exist, or that the optimum is automatically an end point solution is not correct.

  36. Jim Birch
    September 29th, 2011 at 11:36 | #36

    @Sam
    “government thugs” ?! Who are these thugs?

  37. may
    September 29th, 2011 at 11:51 | #37

    free speech is not a licence to lie.

    lies were broadcast.

    lies were identified.

    here is not USA.

    money was not the motive of the lied about in bringing to law the aknowlegment of the broadcast of lies by the lied about and naming specifically the lies lied by the liar.

    whew.

  38. Freelander
    September 29th, 2011 at 12:10 | #38

    I agree with Sam. If lies were said then libel laws are sufficient. When it comes to freedom of speech the speech we have to defend is the speech we don’t like (within reason which is as the prior law had it). Once the types of fine distinctions these additional laws try to make are introduced the problem becomes one of ‘who guards the guardians’. A balance has to be struck and letting a certain amount of (apparent) harm go unpunished is best because in trying to eliminate all harm new harms are invariably introduced. The person that the current mob will be quite happy to have the full weight of law smash today may be a hero tomorrow. I am sure the judgement against the Jewish antiwar protesters would have been popular, at the time. But today, rightly in my view, we think differently.

  39. Durutti
    September 29th, 2011 at 12:19 | #39

    Why do people struggle with the concept that the column was based on lies. Even News Ltd conceded this.
    Please before commenting could you all read the judgement and then show us the bit where the judge said these matters could not be discussed. Indeed he said the opposite. It is sad that people think telling lies about people is acceptable journalism. But it does seem t be the common thinking. Just make up any crap ad when people ask you to correct it say your right of free speech is being impeded. This is about bad journalism.

  40. Tim Macknay
    September 29th, 2011 at 12:24 | #40

    There was an old joke in the USSR. In Russia we have freedom of speech. In America they have freedom after speech.

    I don’t get it.

    His case was perhaps even more clearly a travesty of justice than Bolt’s. He was hauled before the Alberta Human rights commission for the high crime of “offending” Mohammed after republishing the Danish cartoons.

    Perhaps? I would have thought that there is a profound difference between a publication that allegedly “offends” a person who has been dead for more than a thousand years, and one that makes false, demeaning statements about named living individuals. Penalising the first is unquestioningly a travesty of justice. To do the same to the second is much less obviously so. The Human Rights Commission decision against Levant was quite rightly overturned on appeal.

    I must admit, I am quite concerned about legislative moves towards some forms of human rights-type rules that broaden restrictions on speech to the point where disputes about matters of religion, politics, particular lifestyles and so forth can be subject to legal sanctions.

    I think there is a case to be made that race is different, because people have no choice as to the racial category they fall into. By contrast, questions like religion, politics etc are matters of conscience and opinion.

  41. NickR
    September 29th, 2011 at 12:31 | #41

    @Freelander
    Correct me if I am wrong here, but wasn’t it determined that Bolt was not acting in good faith? My understanding is that this is legal speak for lying, or at least deliberately misleading. I have no problem with people making innocent mistakes but I don’t think that this is the case here.

    Further Sam advocates ‘uncompromising individualism’ with respect to freedom of expression which I take to mean unconstrained free speech. You appear to be advocating a balance of free speech and defamation laws which is what I am arguing for.

  42. may
    September 29th, 2011 at 12:38 | #42

    @Durutti

    a struggle with the concept that the column was based on lies?

    there is no argument possible to say lies were not broadcast.

    this is an attempt

    to turn the situation into one where the poor-hard-done-by

    hard-working

    not-getting-fair-go

    victim-of-mouth-frothing-rabid-socialist-leftie-greeny-fancy-shmancy

    (i’m running out of morloch media expletives here)

    champion of gods gift

    of the right to lie with impunity,

    is able to get away with lying with impunity.

    he’s not going to apologise,neither is his medium of broadcast.(imho)

    as far as they are concerned they have a perfect right to lie with impunity.(imho)

  43. gerard
    September 29th, 2011 at 12:48 | #43

    there are no government thugs involved except the legislators who wrote the Racial Discrimination Act back in the 70s. And clearly they did think about the implications for free speech – from the website:

    When is racial hatred not prohibited by the Act?

    The law against racial hatred aims to strike a balance between the right to communicate freely (‘freedom of speech’) and the right to live free from racial vilification.

    To strike this balance, the Act does not prohibit racial hatred or vilification that is not made ‘in public’, and which is ‘done reasonably and in good faith’ – even if it is done in public.

    Examples of ‘done reasonably and in good faith’ include:

    an artistic work or performance – for example, a play in which racist attitudes are expressed by a character

    an academic publication, discussion or debate – for example, discussing and debating public issues and policies such as immigration, multiculturalism, or special measures for particular groups

    a fair and accurate report on an issue which the public may be interested in – for example, a fair report in the media about something which happened that encouraged racial discrimination and hatred or was racially offensive behaviour

    a fair comment – but only if the comment reflects a view that a fair-minded person could have held and the person who made it actually holds that view.

    “Fair and accurate report” may be subjective, but it would be pretty difficult for Bolt to claim that his report was fair and accurate.

    The question is whether racial vilification is a category of speech that warrants this type of special attention – whether it is fundamentally different than other types of speech that “we don’t like”.

  44. Fran Barlow
    September 29th, 2011 at 13:05 | #44

    Some context. Bromberg ruled that the relief available under s18D (basically protection for good faith statements on matters of public interest) from the more general constraint in s18C was not available because Blot made no serious attempt to get his facts correct. He further noted that had he done so the general claim he sought to make would have been implausible. Thus, a good faith defence was excluded.

    One might note also The News Ltd Code of Conduct which runs in part as follows:

    1. Accuracy

    1.1 Facts must be reported impartially, accurately and with integrity.

    1.2 Clear distinction must be made between fact, conjecture and comment.

    1.3 Try always to tell all sides of the story in any kind of dispute.

    1.4 Do not knowingly withhold or suppress essential facts.

    1.5 Journalists should be reluctant to rely on only one source. Be careful not to recycle an error from one reference source to another. Check and check again.

    So readers had a form of warranty about the professional practice of Bolt (laughable since it is not known to have been enforced but there you have it)

    He can’t claim 18D with that in the baggage he took to court.

    Bolt might have made his trolling claims of misuse of identity for personal profit at the expense of authentic recipients (i.e those having the requisite amount of melanin in their faces to satisfy him) of a program to which he objects in toto (again one coughs at the hypocrisy) if he hadn’t actually referred to any specific living person and avoided the terrible and crushing sanction of having a correction and apology published on his behalf of course.

    Also relevant here in the code:

    8.1 Do not make pejorative reference to a person’s race, nationality, colour, religion, marital status, sex, sexual preferences, age, or physical or mental capacity.

    No details of a person’s race, nationality, colour, religion, marital status, sex, sexual preferences, age, or physical or mental incapacity should be included in a report unless they are relevant.

    This last point — relevance — clearly implies accuracy, since inaccurate things are ipso fact not relevant. Blot ought to have known that even by the published standards of his employer, leave aside those of “lefty lawyers” he was out of order. He choooses to work for them and can’t bleat now about the state oppressing him into noisy silence.

    Moreover, I’d say it’s telling that when you strip away the posturing and consider the “sanction” imposed by law, it’s to publish a correction and an apology.

    The thing that offends Blot most is being forced to co-exist with truth and civilised conduct. This offence is so grave in his view as to truncate his scope to express himself as he pleases, to “silence” him. He dare not run such a risk this morning, according to him.

    Need one add anything to the Blot’s admissions to see how they damn him and the army of the living dead behind him? Probably not.

  45. NickR
    September 29th, 2011 at 13:34 | #45

    @gerard

    @Fran Barlow
    Ahh ok that makes sense.

  46. TerjeP
    September 29th, 2011 at 13:39 | #46

    The SMH article on the topic says that Bolt is not required to publish a retraction nor an apology.

  47. andrewt
    September 29th, 2011 at 14:09 | #47

    Bolt’s writing was, as it often is, contemptible and there should be means for the complainants to force prominent correction of the factual errors it contained independant of any mention of race – but this part of the Racial Discrimination Act should be repealed. Its an unnecessary even counter-productive restriction of speech.

  48. J-D
    September 29th, 2011 at 14:16 | #48

    Sam :
    The sentiment was overturned in Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot). I say the USA has this one exactly right. The rest of the world just isn’t civilised on this score.

    That is a misleading representation of US law. The limitations imposed on free speech by US defamation laws are well-known to be narrower in their scope than the limitations imposed by defamation laws in other countries, but they are not non-existent.

  49. gerard
    September 29th, 2011 at 16:05 | #49

    as for Bolt being the victim of anti free-speech “thugs”, they are pretty lame as far as thugs go.

    Bolt is not going to be jailed or fined, he isn’t going to lose his job, he hasn’t been banned from writing about any topics, he hasn’t been given a criminal record, he’s not being made to write an apology. basically the extent of his victim-hood is being accurately called a liar by a judge. Although to be fair, that is worse than Alan Jones copped after inciting the Cronulla riots.

  50. sam
    September 29th, 2011 at 16:22 | #50

    @NickR

    Hi Nick. Sorry to take so long to reply. It seems to me you’re asserting that two categories of speech should be restricted; lies about individuals, and speech that does general social harm. I’ll deal with both in turn.

    I’m Ok with libel laws and such existing in some form. In fact, I’m OK with forcing journalists to print corrections of any errors in purely factual assertion they are determined to have made.

    I’d define “factual assertion” very narrowly however. For example “Mr Smith shot Mr Brown with his gun” is a factual assertion, “Mr Bloggs does not really belong to a particular (hazily defined) ‘race’” is not. The distinction is that while everyone agrees on what the words “shot” and “gun” mean, the same is not true of “race.”

    What should be totally free though, is opinions on clearly unknowable facts – including opinions about motive. So in your example, I shouldn’t be able to baselessly say “Mr X had sex with a child.” I should be able to say “I believe X wants to have sex with children and would if he had the chance.” Others ought to then drastically lower their opinion of me of course if what I say is unfounded, but the law shouldn’t get involved.

    It seems to me the supposed ‘lies’ Bolt has made have been of the type “Mr X didn’t have very much to do with his aboriginality. He had a choice between several racial identities and chose this one for cynical (or otherwise unfortunate) reasons.” According to my moral code, that’s not a knowable factual assertion. Indeed, not even Mr X can know the full range of his motives.

    For the second category, speech that does general social harm, I’m quite a lot less sympathetic to the censors. My position is actually pretty close to an end point, and is exactly where modern interpretations of the first amendment lie. Socially damaging speech should only be banned if it’s “directed to and likely to incite imminent lawless action”

    This would cover anti-Tutsi propaganda during the Rwandan genocide, denazification programs in Germany and Austria after WW2, Lex Wotton’s incitement to riot on Palm island a few years ago, and (possibly) Alan Jones’ comments during the Cronulla riots. These events hardly ever happen, and all other speech should be allowed. If a preacher wants to say all homosexuals are going to hell, he should be allowed to. If a neo-Nazi thinks Jews and Blacks are subhumans, I want him to say so. I’m delighted there exists a Westboro baptist church in the USA; I think it’s a sign of democratic health.

    I believe these things not just for some stubborn libertarian principle, but because in the long run it’s the best way to a decent society. The Western world has become a lot more liberal in recent decades, and not because illiberal thought and speech has been proscribed. Rather, open communication has allowed us to hear both liberal propagandists exhorting us to be kind to our neighbour, and also illiberal bigots revealing their true hateful beliefs. In a free market of ideas, the liberal beliefs have simply won. If anything, censorship laws and censureship social customs have actually held us back. If mainstream christian groups felt free to explain why they were really against gay marriage (“homosexuals are disgusting and incapable of real love”), we would listen their hateful opinions quite a lot less. Instead, they’re forced to talk in a sort of nonsense code (“marriage should be between a man and a woman”), that – by it’s tautological emptiness- makes it much harder to attack. I would much prefer to have the full extremeness of everyone’s opinions out in the open for a fair fight.

    Finally, as others have pointed out it’s often difficult to tell if someone is “falsely shouting fire in a crowded theatre” or “shouting fire outside a burning theatre, warning others not to go in.” Bolt might actually have a point about the social harm of rigidly adhering to a vague racial identity. On the other hand, perhaps he’s totally wrong. The best (only!) way to decide these things is to have a national discussion.

  51. sam
    September 29th, 2011 at 16:32 | #51

    @J-D
    I was talking there about the “social harm” restrictions on free speech. There are other “individual harm” type exceptions too.

  52. J-D
    September 29th, 2011 at 16:38 | #52

    sam :@NickR
    I’m Ok with libel laws and such existing in some form. In fact, I’m OK with forcing journalists to print corrections of any errors in purely factual assertion they are determined to have made.
    I’d define “factual assertion” very narrowly however. For example “Mr Smith shot Mr Brown with his gun” is a factual assertion, “Mr Bloggs does not really belong to a particular (hazily defined) ‘race’” is not. The distinction is that while everyone agrees on what the words “shot” and “gun” mean, the same is not true of “race.”

    If you look at the passages I quoted above from the judgement, you will see where the judge found that Bolt made erroneous assertions about purely factual matters.

  53. Watching the Deniers
    September 29th, 2011 at 16:41 | #53

    TerjeP :Defamation law ought to go also. It presumes that people own their reputation. What I think about you is not your property. If my opinion of you get’s lowered what is changed is something that belongs to me not something that belongs to you. You have no moral claim over my opinion.

    This is quite frankly, the strangest thing I’ve read. Defamation laws to go? It has nothing to do with someone having a moral claim over another’s opinion or restricting what a person thinks.

    Defamation is this: when an individual makes very public claims against another that are false. It is not making Bolt’s inner thinking a thought crime. He made documented claims and thus subject to fact checking.

    It is a question of where the burden of proof lies. Bolt’s defence to the action brought forth was the veracity of the claims he made. His claims proved to be false.

    Therefore, he lost. Simple.

    How do you propose the person defamed get redress? Do you have a sensible alternative?

    In this instance the person making the false claim is the one of Australia’s most prominent journalists, has the backing of a multi-billion dollar corporation to fund his legal bills who gives them a platform to spread misinformation…

    Bolt the victim?

    As I’ve always said, Bolt has a glass jaw.

    He’ll happily sling insults at his “enemies” but then react hysterically whenever some one lands a blow.

    Indeed, reading the HUN today I can’t help but be amused at just how *sensitive* the good ol’ boys at News Corp are.

  54. September 29th, 2011 at 16:41 | #54

    gerard @ #46 said:

    as for Bolt being the victim of anti free-speech “thugs”, they are pretty lame as far as thugs go.

    True, in this country though the constraints on straight talking on the touchy subject of cultural identity are extensive (going right down to the comments section of obscure blogs!) they are not especially invasive. Even after this latest legal “liberal” slap down on free-speech.

    Bolt is not the main victim of this judgement. He’s a big boy working for a big company and they can look after themselves.

    And Bolt’s counsel can still turn to the High Court (Theophanous v HWT) for redress. Note the plaintiff in that case was a race hustler trying to shut-down debate on his scam. C’est plus ca change.

    But you miss the point about the intended target. Its the legion of other journalists, writers and commenters whose exercise of free speech will be chilled by this judgement. Basically if you work in the media (MSM or blogs) you can now be made toast if you offend someone from a designated victim group. With the test of offence being pretty much subjective ie “you hurt my feelings!”

    Given the paucity of job opportunities in the media and its exposure to consumer boycott’s and flash mobbing by well-organized activists it is unlikely that media professionals or amateurs will be in any mood to be forthright in their criticism.

    So the remnants of the ATSIC push will once again be free from public accountability. And how did that work out the last time around?

    Worse luck for those Aborigines unfortunate enough to be “clients” of these “service providers”.

  55. gerard
    September 29th, 2011 at 16:42 | #55

    @sam

    It seems to me the supposed ‘lies’ Bolt has made have been of the type “Mr X didn’t have very much to do with his aboriginality. He had a choice between several racial identities and chose this one for cynical (or otherwise unfortunate) reasons.”

    The lies were a bit more concrete than that. From the ruling:

    Mr Bolt said of Wayne and Graham Atkinson that they were “Aboriginal because their Indian great-grandfather married a part-Aboriginal woman”. In the second article Mr Bolt wrote of Graham Atkinson that “his right to call himself Aboriginal rests on little more than the fact that his Indian great-grandfather married a part-Aboriginal woman”. The facts given by Mr Bolt and the comment made upon them are grossly incorrect. The Atkinsons’ parents are both Aboriginal as are all four of their grandparents and all of their great grandparents other than one who is the Indian great grandfather that Mr Bolt referred to in the article.

  56. sam
    September 29th, 2011 at 16:52 | #56

    @gerard
    Oh OK, I hadn’t heard that. Well if that’s true I agree he should be made to print the correction.

  57. gerard
    September 29th, 2011 at 16:55 | #57

    Basically if you work in the media (MSM or blogs) you can now be made toast if you offend someone from a designated victim group. With the test of offence being pretty much subjective ie “you hurt my feelings!”

    You can read the lengthy ruling (as well as the original Act) for yourself, but it’s not quite as simple as that. Racist speech is still okay if it’s “in good faith”, but Bolt made the mistake of fabricating facts about individuals in the process. There’s a difference between “forthright criticism” and fabrication. And at any rate, nobody’s “toast”; this isn’t even a slap on the wrist.

  58. Freelander
    September 29th, 2011 at 17:01 | #58

    @sam

    If it is true, then their fair skin is remarkable (assuming that the ‘fair skin’ claims weren’t also wrong).

  59. gerard
    September 29th, 2011 at 17:06 | #59

    @sam

    That’s only one such example Sam. The ruling discusses more.

    http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html

    The judge was pretty explicit that it was these factual errors and distortions which made Bolt’s articles subject to the RDA. If he had just given his racist opinion without making stuff up about individuals there wouldn’t have been a case.

  60. gerard
    September 29th, 2011 at 17:08 | #60

    what I mean is, it was the errors and distortions which made Bolt’s articles not subject to the free-speech (“good faith”) exceptions in the RDA.

  61. sam
    September 29th, 2011 at 17:16 | #61

    @Freelander
    Yes remarkable, although not impossible. I’d be interested in hearing more about this.

  62. NickR
    September 29th, 2011 at 17:32 | #62

    @sam
    Sam I’m not sure that you understood me. My initial post was more or less a comment on the suggestion that defamation laws be done away with, one that you appeared to support. I was definitely not talking generally about laws banning or regulating what I may perceive to be ‘anti-social speech’ as this is clearly very subjective and, quite frankly, highly dangerous. I was rebutting the original argument using an unambiguous ‘stylized’ example where somebody propagates a known lie or other attempt to mislead others about some third party.

    You later say that the definition of a ‘lie’ can be a bit nebulous, which I agree with. However I am more than happy to let this be decided by a court on a case by case basis. Your ‘uncompromising individualism’ did not seem to include exceptions for outright lies or deliberate attempts to mislead, which I think we both agree should be subject to defamation laws.

  63. Tim Macknay
    September 29th, 2011 at 17:32 | #63

    Defamation law ought to go also. It presumes that people own their reputation. What I think about you is not your property. If my opinion of you get’s lowered what is changed is something that belongs to me not something that belongs to you. You have no moral claim over my opinion

    Terje, you are consistent. That marks your position as being principled, if extreme.

    But I must ask you this. If you lie about me to others in a manner that causes me to lose my job, results in people refusing to do business with me, and otherwise causes me significant personal and financial loss, should I have some remedy in law against you? Or am I expected to simply hope that people will believe me rather than you, regardless of any possible differences between us in charm, charisma or skill in expression, and simply suffer in silence if they don’t?

  64. Chris Warren
    September 29th, 2011 at 17:52 | #64

    @Tim Macknay

    Good point.

    Of course another consideration is; what happens if someone lies, with the intent to cause those effects for their own profit?

  65. sam
    September 29th, 2011 at 17:57 | #65

    @NickR
    Yeah, so I guess I should have been more nuanced in my original position. For me, defamation laws ought to exist, but only to cover “concrete” lies.

  66. rog
    September 29th, 2011 at 18:07 | #66

    It seems to me that in all this discussion not much if any thought has been given to the claims of the plaintiffs and the proved damage to themselves. Most seem to be concerned with Bolt and the law and possible repercussions on others.

    The outrage appears to be centered around the individuals right to use whatever form of abuse, untruth or imputation to support their opinion without consideration of the feelings of others. Without perusing the detail the Coalition have been reported as saying that they will change this law. It would appear that once again free speakers/traders are promoting their ideology at the expense of the individual.

  67. TerjeP
    September 29th, 2011 at 18:13 | #67

    Tim – look who benefits from defamation laws in practice. It isn’t Joe Average taking people to court for defamation. It is a law that protects the rich and famous. And they are not without means to fight such attacks in other ways. In any case it is the silent whispering campaign not the bold public assertion that causes real harm to people’s reputation. Because of defamation laws nobody dares say publicly that Craig Thompson is a liar and a thief. Some that have merely raised questions have been threatened with defamation action. So now they all pussy foot around the issue. However the whisper between people in private across the country is that Craig Thompson is a liar and a thief.

    I have no doubt that on occasion defamation law gets used in a way that makes the world a better place. Just as I have no doubt that at times free speech provisions get used in a way that makes the world a worse place. However in evaluating a body of law we ought not cherry pick the most favorable examples. We should evaluate it on points of principle and on the overall practical consequences. Having reflected on this basis I think we should have hard core free speech protection.

    I’m not sure who the following quote should be attributed to, and we can quibble over the details, but I think the sentiment is largely correct:-

    I’d rather see a hundred guilty men go free than see one innocent man convicted

  68. TerjeP
    September 29th, 2011 at 18:17 | #68

    Tim – to answer your two questions explicitly. No to the first and yes to the second.

  69. KB Keynes
    September 29th, 2011 at 18:52 | #69

    I would agree with Terje somewhat.

    i would still have defamation laws but have the news organization make the correction in exactly the same way it was originally written, stated etc.

    of course that would mean the front page of the Australian would constantly be of apologies but so be it.

  70. Freelander
    September 29th, 2011 at 19:08 | #70

    @sam

    Yes. Remarkable but not impossible. However….

    “The Atkinsons’ parents are both Aboriginal as are all four of their grandparents and all of their great grandparents other than one who is the Indian great grandfather that Mr Bolt referred to in the article.”

    So a great grandfather is Indian but both parents and all four grandparents are Aboriginal. Interesting. So what Bolt said is untrue and what the judge said is true. Interesting. Maybe seven of the eight great grandparents were Aboriginal, but also were European (using the same method of categorisation in an even handed manner)? If that is the case, then the parents and grandparents were also all European, maybe?
    I guess that would make the person European? But also Aboriginal? (And Indian of course.)

  71. Tim Macknay
    September 29th, 2011 at 19:09 | #71

    Terje, I agree that in practice the wealthy are more likely to take action for defamation Joe Average. That’s true of civil litigation in general, but IMHO it’s not a reason to abolish the right to seek legal redress. I also suspect that the deterrent effect of defamation laws (or the chilling effect, if you prefer) probably does go further than that and prevents many people from deliberately lying to try to destroy the reputations of others. I do think there is a case for considering how defamation laws might be reformed to work more effectively for the purposes for which they are intended.

    I’m unconvinced by your example of whispering campaigns. They may or may not be more damaging than bold statements, but in any case they are also subject to defamation law (although perhaps more difficult to prove – but that depends on the particular facts). I think the Thomson example is a poor one – it’s true he did sue for defamation at one point, but that hasn’t stopped the media reportingthe various claims about his alleged actions. If there is a whispering campaign, most of the people doing the whispering are whispering about what they’ve read in daily newspapers or seen on television.

    I’d rather see a hundred guilty men go free than see one innocent man convicted

    I agree with this principle up to a point – although I don’t necessarily endorse the particular calculus, and it depends on the seriousness of the offence and severity of the punishment (I’m unconvinced that it’s better for a hundred people to evade paying their train fare than for one person to wrongly receive a $50 infringement, for example). However, I don’t really think it’s relevant to the question of civil wrongs like defamation, since such wrongs don’t involve people being locked up (or executed!), but merely paying compensatory damages, or in many cases, simply apologising.

    And thanks for the answers to my questions. You are consistent, at least. Personally I think it would be better if there were no need for defamation-type laws, but I can’t really see how a free and civilised society could function effectively if people were able to use lies to destroy others with impunity. But then, I’m not a doctrinaire libertarian.

  72. Freelander
    September 29th, 2011 at 19:14 | #72

    Yes. Clearly Bolt had it all wrong. But then maybe easy to become confused.

    But given that we don’t like Bolt let’s simply convict him, label him with various names and give the matter no further thought. After all, we ought not give him the benefit of the doubt.

  73. Mulga Mumblebrain
    September 29th, 2011 at 19:34 | #73

    In my opinion Mr Bolt and his ilk (there are scores such, most, but not all employed by News Corpse) exist to foment and provoke fear and hatred in society, to the perceived political and ideological benefit of the Right, whence all of them emerge. The conflation of hatemongering, often viciously cruel and dripping with malice, with ‘free speech’ is detestable, but revealing, humbug. The sorts of vile aspersions Bolt’s victims suffered (and what a pity that they did not see fit to sue for defamation as well) would never dare to be cast at, for instance, Jews, but blackfellas, environmentalists, unionists, Moslems etc all face this sort of abuse, day in and day out. And the Right, including Abbott, have rushed to Bolt’s side, a hate-peddling MSM being seen as a great ideological weapon for the Right in garnering the votes of the worst in society, a fraction steadily growing in size and belligerence. A society riven by the deliberate production and exacerbation of relentless internecine hatred, is, needless to say, morally diseased.

  74. Donald Oats
    September 29th, 2011 at 20:14 | #74

    @Freelander
    I’m giving Bolt as much “benefit of the doubt” as he gave his targets.

    Bolt could have drawn the same conclusions, as “offensive” as they may have been to the targets, if he had chosen to exercise care in presenting factual and evidence-based chains of reasoning that led to his conclusions; heck, his conclusions could even have been erroneous, so long as care had been exercised in arriving at them.

    Instead, Bolt had an exuberance of erroneous and flagrant ficts instead of facts, and further to that, he quite obviously chose not to minimise the likely offence to his targets. Had Bolt stuck to factually based argument, and had he reasonably minimised the likely offence (of his conclusion, without altering the fact of the conclusion), he could have remained exempt from the act, even if his conclusions were drawn erroneously.

    Hardly a curtailment of free speech; simply a requirement to be moderately polite even while being extremely vigorous in arguments concerning race, sexuality, etc. Heck, even a mocking tone is allowed…

  75. Fran Barlow
    September 29th, 2011 at 20:25 | #75

    @Freelander

    But given that we don’t like Bolt let’s simply convict him, label him with various names and give the matter no further thought. After all, we ought not give him the benefit of the doubt.

    Massively overblown.

    1. Strictly speaking, he hasn’t been convicted as this was not a criminal matter. “We” can metaphorically convict him of a great many wrongs.

    2. Blot forfeited any “benefit of the doubt” he might have had a very long time ago. I’m not sure where Deltoid’s “War on Science” series is up to now, but the Blot has been an earnest and insistent contributor. Even on this matter he has had ample time to reflect on the ways in which he has wronged those whose names he used and declined to follow even the News Ltd Code of Practice. Today, in a whining and unconvincing defence, he has conducted a pity party and invited others to share his tears. He has acknowledged no wrongdoing, but has insisted that his style has been cramped by what amounts to a slap on the wrist and an opportunity to play martyr to the cause of calumny.

    The man damns himself and yet you want to give him a pass? Astonishing.

  76. TerjeP
    September 29th, 2011 at 20:37 | #76

    The coalition has come out and said they will seek to amend the racial discrimination act in response to the Bolt case. The ALP and Greens should follow suite. Free speech protection serves everybody irrespective of political stripe. The Greens in particular should be supportive given their inclination to mill around in front of Jewish shops making rude remarks.

  77. Red
    September 29th, 2011 at 21:16 | #77

    There’s a push on to have every Australian politician affirm the right of Andrew Bolt to free speech. I believe non-affirmation should be publicly recorded. I’m also of the belief that any person that works for a public institution should be removed if they do not believe in the right of free speech. That would include all academics.

    Totalitarism is an evil, and it’s an evil Australia should remove. The opposition is correct and will enjoy large support with any attempt to remove such a terrible stain.

  78. TerjeP
    September 29th, 2011 at 21:26 | #78

    I’m also of the belief that any person that works for a public institution should be removed if they do not believe in the right of free speech.

    This is a silly proposition. The law should be amended but it is ludicrous to make government employment contingent on support for specific laws. I suspect you are not even genuine in your commentary but anyway I don’t agree. What people think is a personal matter and unless it has direct impact on their capacity to do their job it should in general be irrelevant to employment.

  79. Jarrah
    September 29th, 2011 at 21:35 | #79

    “The Greens in particular should be supportive given their inclination to mill around in front of Jewish shops making rude remarks.”

    Please name one other company apart from Max Brenner that has been the subject of the protests you refer to. If you can’t, then please stop with the dog-whistling, and stick to the facts.

  80. TerjeP
    September 29th, 2011 at 21:41 | #80

    Isn’t one enough?

  81. TerjeP
    September 29th, 2011 at 21:51 | #81

    Jarrah – it’s a bit harsh to characterise my comment as dog whistling. What sort of racist am I supposedly calling out to?

    The Max Brenner protests have been roundly condemned across the political spectrum. Many in the ALP have been critical (eg Kevin Rudd) and also some in the Greens (eg Bob Brown). Liberal have organised counter protests. I’m arguing that such protests, as distasteful as they are, should have free speech protection. I’m bamboozled by the dog whistling allegation.

  82. TerjeP
    September 29th, 2011 at 21:52 | #82

    p.s. Jarrah – where do you stand on free speech?

  83. Chris Warren
    September 29th, 2011 at 22:39 | #83

    @TerjeP

    The Greens in particular should be supportive given their inclination to mill around in front of Jewish shops making rude remarks.

    This was a deliberately offensive, trying to taint the Greens in debased antics from other periods when Jewish shops were attacked.

    Jarrah is right on this.

    Terje’s subsequently playing dumb is odious.

  84. Freelander
    September 30th, 2011 at 02:51 | #84

    If we are lucky enough to have Bolt in the dock what more do we need? Evidence? Surely not!

    The odious fellow has never gotten so much press. He must be sad indeed. I guess we must conclude that the law works (in mysterious ways).

  85. TerjeP
    September 30th, 2011 at 06:54 | #85

    Chris – I make no secret of the fact that the Greens are frequently vile. And I’m not shy of offending Green supporters in the course of saying so. However this has nothing to do with dog whistling. If it was dog whistling then what sort of racist was it calling out to?

  86. Mulga Mumblebrain
    September 30th, 2011 at 06:56 | #86

    You can see what I mean about how vilification of detested others is second nature for the Right with this idiocy about ‘Greens milling around outside Jewish shops’. The anti-semitic canard, that all-purpose slur mobilised more and more, with, luckily, diminishing effectiveness. Perhaps we could speak of ‘Jewish boys’ milling around the Mavi Marmara and dispatching unarmed Turks, or milling around the skies over Gaza presenting gifts of high explosive out of the goodness of their hearts and their vaunted ‘moral purity’, but the MSM, and its Augean stable of Rightwingers certainly wouldn’t. Those engaged in the BDS campaign, and that includes many Israeli Jews, despite odious, quasi-fascistic legislation in that supposed ‘democracy’, are battling, as did the similarly reviled anti-apartheid agitators of the 60s and 70s, against racist cruelty and sadistic barbarity. No wonder the Right despises them!

  87. Mulga Mumblebrain
    September 30th, 2011 at 07:07 | #87

    I think that Bolt’s undisguised contempt for the judgment and process, evidently shared by the entire Right, who have flocked to defend their equation that hate speech is the essence of free speech, bears comment as well. These bullies don’t like being thwarted, and their monstrous egotism sees courts as well as all other sentient life as merely bit players in the great drama of their existence. And let’s not forget how other diseased organs of the Murdoch Evil Empire joined in the party. ‘The Fundamental Orifice of the Nation’ aka The Australian, did a nice little smear job on Larissa Behrendt, too, with a desultory, but vicious, attempt to destroy her career. Geoff Clark got a vicious going-over years ago, and the targeting of non-compliant Aboriginal leaders and, on the other hand, the manufacture and promotion of collaborators with their peoples’ cultural destruction is a real cottage industry on the Right. These creatures’ appetite for hatred and cruelty is insatiable. A state where ‘Free Speech’ means the exchange of abuse, character assassination and lies is on the road to ruin.

  88. durutti
    September 30th, 2011 at 07:15 | #88

    Well said Mulga. Would these people defend toben and his ant semitic website? Or the journalists sprouting the same sort if villification on rwandan radio in the lead up to the horror? Those journalists are now convicted war criminals. But hey they were just exercising their right of free speech.

  89. Fran Barlow
    September 30th, 2011 at 08:16 | #89

    @Jarrah

    Please name one other company apart from Max Brenner that has been the subject of the protests you refer to. If you can’t, then please stop with the dog-whistling, and stick to the facts.

    One should make a couple of points here.

    1. When this matter arose I had a look about to see if any state branch of thThe Greens had endorsed the Max Brenner protests, and as far as I could tell, none had. Nor could I find any local branch that had done so, and while it’s certainly possible that some Greens had participated, I’m not aware that any had. Indeed, until the news of the matter arose, I wasn’t even aware that Max Brenner had any connection to Jewish identity or Israel at all.

    2. Max Brenner was being targeted not because it was “a Jewish shop” but because it has explicitly stated on its website that it supports IDF operations, including therefore in the occupied territories. If Max Brenner was controlled by Christian or agnostic supporters of the IDF, the position would be the same. I believe Caterpillar has come in for some protest on the same basis and it is neither a “Jewish shop” nor to the best of my knowledge, a Jewsih business.

    3. Even if in some bizarro parallel universe, The Greens were protesting against businesses based on Jewish ownership — i.e. an explicitly racist position worthy of condemnation — TerjeP would favour that enjoying the protections of free speech. How then, his trolling refernces to “Jewish shops” has any bearing on how The Greens should respond to s18C of the RDA is hard to fathom. It is clear that this was merely a pretext for a cheap shot at The Greens based on a Murdochratic slander raised during the March state election.

    Now personally, I’m not that keen on s18C of the RDA as it stands. I beleive if I were tasked to redraft it, I could define harms that the section seeks to restrain in ways that would be more resistent to slippery slope arguments about the incipient threat of totalitarianism. That said, the sanction here is a trifle. If this is how North Korea sanctioned dissenters, I doubt it would be a significant news item outside North Korea. The fact of the matter is that this section survived the entire 11 years of Howard governance, including a period of time when they controlled the Senate as well. To the best of my recollection, they never proposed repealing it, and people will recall that they instead brought ina series of measures aimed at restraining sedition in the context of advocacy of terrorism. They brought in the control orders. The ALP has followed them in seeking to sieze proceeds of David Hicks’ book on his time in Afghanistan and Guantanamo on a “proceeds of crime” basis even though he has never been convicted by a properly constituted court and made admissions under duress.

    The standing of the LNP to assert support for unfettered utterance is zero.

  90. Chris Warren
    September 30th, 2011 at 09:25 | #90

    It is gratifying to see that most people have spotted Terje’s trickery and the context.

    He now wants to divert to some inane discussion about the term dog-whistling, and whether or not the Greens are vile.

    All this should be ignored.

    It is a complex issue, when politics, economics, ethnicity, and religion all get mixed together. So we have Semitism, Zionism, Judaism, and expansionism – all apparently destroying the rights of the original inhabitants. Zionist expansionism and Zionism itself are the problems.

    If you want to protest against Zionism or the IDF, rightwingers will always try to defend Zionism and the IDF by claiming you are protesting against “Judaism” (and in a way so that it is associated with previous anti-Jewish pogroms).

    Australians have every right to protest and boycott proponents of Zionism and the spread of Israeli settlements over Palestinian land.

    Remember it was the Zionist terrorists who started this mess in the 1940′s and Israel only exists today because wealthy individuals in the US corrupted political processes and exploited world sympathy for the Jews.

  91. Durutti
    September 30th, 2011 at 09:33 | #91

    Gee Chris good to see you can’t be diverted . Suffice it to say the BDS is against Israeli businesses not Jewish businesses in the same way as the anti apartheid boycotts were against the South African regime.

  92. TerjeP
    September 30th, 2011 at 09:45 | #92

    Fran – I think it is appropriate that you mention the anti sedition laws. It illustrates that both sides of politics in Australia need a good kick in the arse. It is imaginable to me that there might be some regulation of free speech more optimal than the hard core right to free speech I have advocated however given the poor instincts of our legislators there is no way I would wish to grant them much license to formulate a compromise. What is ironic is that parliamentary privilege implies that politicians can be trusted to speak nicely more so than the average citizen.

  93. Dan
    September 30th, 2011 at 10:07 | #93

    TerjeP – as an ethnic Jew I can easily see your whistleblowing for what it is. You ought to be ashamed.

    There is a diversity of Jewish voices, both in Israel and elsewhere, on the strategy and tactics of the current militant Zionist program. I for one am deeply against, because frankly in the short, medium, and long term it is not only immoral in terms of its effects on the oppressed, but also deleterious to the legitimacy of the Jewish state.

    As for Max Brenner – if you cheerfully supply an occupying war machine – from wherever – with lousy chocolate, protests and boycotts are what’s in store. Simple as that.

  94. Dan
    September 30th, 2011 at 10:07 | #94

    *whistleblowing -> dogwhistling – mea culpa

  95. TerjeP
    September 30th, 2011 at 10:31 | #95

    Dan – I’m no fan of Zionism and I think the creation of Israel was colonialist stupidity. I don’t agree with the boycotts but I understand their logic. The way they have been conducted however has entailed racist overtones and has caused offense. They have also led to accusations of racism against those involved. Criticism has come from across the political spectrum. As such proponents of the boycotts ought to be assertive about free speech principles.

    I reject entirely the notion that I was dog whistling. Nothing that I said was an appeal to racists. If you think it was then please articulate what sort of racist would be heartened by what I said. Accusations of trolling might make some sense but dog whistling does not.

  96. Mulga Mumblebrain
    September 30th, 2011 at 10:38 | #96

    The hysterical demand that all politicians be forced to support Bolt’s ‘free speech’ rights is lurid hypocrisy, even for the Right. Every decent politician (the handful that remain) ought to unambiguously declare that vile, vicious and intensely malicious hate speech is not ‘free speech’. As Holmes of the US Supreme Court asserted, free speech does not extend to shouting ‘Fire’, falsely, in a crowded theatre. And to spread lies and contempt with the quite clear purpose of denigrating and belittling others, for political advantage, is every bit as malignant as that act. It tells you everything you need to know of the real’ character’ of the Right that they so histrionically defend the peddling and fomenting of crude hatred.

  97. Tim Macknay
    September 30th, 2011 at 11:14 | #97

    I think it is appropriate that you mention the anti sedition laws. It illustrates that both sides of politics in Australia need a good kick in the arse.

    It’s certainly the case that governments of all stripes in Australia tend to put a low priority on civil liberties. If there is some short-term political gain to be had from some move that diminishes or curtails a civil liberty, they will tend to do it with little hesitation.

  98. Dan
    September 30th, 2011 at 11:29 | #98

    Opponents of militant Zionism are easily smeared with the anti-Semitism brush. I didn’t think the Max Brenner boycott had racist overtones, but maybe that’s because I distinguish between Judaism and militant Zionism. Others fail to, and that’s disappointing.

    Still, you should have been more careful in your phrasing, as it implied that those boycotting Max Brenner (that includes me, though the quality of their wares isn’t doing them any favours) were doing so because it was a “Jewish shop”. That’s a misrepresentation of why people are boycotting it and you’d have to be wilfully oblivious not to notice the historical resonance of such phrasing.

  99. TerjeP
    September 30th, 2011 at 21:33 | #99

    Dan – some of the Max Brenner protesters have confused Zionism and Judaism which is why I describe the protests as entailing racist overtones. And some of them have chanted songs that imply an end to Israel and a one state solution. Which isn’t racist but also isn’t particular productive peaceful or practical. They also blockaded the shop in Melbourne and impeded the freedom of others to come and go. They had to be dispersed by police.

  100. Chris Warren
    September 30th, 2011 at 21:57 | #100

    Terje’s understanding of these issues is pretty poor.

    Judaism – is not a racist dimension. Anyone can convert to Judaism. A Jewish nation consists of many different races.

    Semitism is the ethnic type, and you can get Jewish Semites, Christian Semites and atheistic Semites.

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