Home > Oz Politics > Bolt, again

Bolt, again

September 30th, 2011

The case against Bolt began with a series of clearly defamatory claims against individuals, shown in the court decision to be false[1]. That’s never been part of the concept of free speech in Australian law, so, as far as the facts in this particular case are concerned, there is no problem. The main issues are whether it would have been more appropriate for the complainants to rely on ordinary defamation laws, and whether this case sets a precedent that might be used against legitimate expressions of opinion, for example on the appropriate criteria for determining indigenous status.

On the first issue, Mark Bahnisch (at LP, no link because of an annoying bug that stops me reaching the site from here) makes the point that the complainants wanted to address the attack on indigenous people in general embodied in Bolt’s piece, rather than simply the attack on their individual reputations. This is a strong argument. However, for cases of this kind, it might be better to change defamation laws to make racial attacks an aggravating factor, and evidence of malice, so that someone defamed because of their race could secure a judgement that made this clear, both in the findings and in the determination of damages. In particular, in a case like this, there should be no need to prove particular damage: the defamation should be sufficient for a judgement and damages.

As regards defamatory statements about a racial or religious group, of the general form “All/most Group X members display Bad Characteristic Y”, it would be possible to extend existing laws to allow class actions. That hasn’t been allowed in the past, but there is no good reason for a distinction between defaming someone as an individual and as a member of a group.

That would leave the case of statements that might “offend, insult or humiliate” members of some group without being defamatory in the ordinary sense of the term. While it’s easy to imagine some very troublesome cases, there are a number of defenses in relation to academic discussions, public interest matters and fair personal comment, and so far there isn’t significant evidence that the provisions have in fact worked to constrain free speech in any meaningful way. Still, if there are changes needed, this is the place to look.

fn1. In this context, the defence that Bolt honestly believed the claims to be true would be irrelevant. In any case, he obviously took so little care in his research that a defence of this kind would fail to meet the test of reasonable belief.

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  1. kika
    September 30th, 2011 at 07:35 | #1

    i am throughly sickened by this man bolt and his poisonous words which incite hatred and violence from his gullible followers. facts and analysis are rarely a part of his agenda, and i don’t regard him as a journalist. he and his readers constantly look for scapegoats and, like all bullies, choose the most vulnerable and attack them in the basest way.

    in this case, the vulnerable chose to fight for their dignity and integrity, and won! what courage, and many congratulations.

    only a similarly sick character like rupert murdoch would employ the likes of bolt.

    i avoid reading his words or watching him on tv where possible (ie both bolt and murdoch). they behave in a way which is unaustralian – murdoch having ditched his aussie citizenship long ago.

  2. TerjeP
    September 30th, 2011 at 07:38 | #2

    If I said publicly that your mother is Chinese and you should stop passing yourself off as a real Australian, then I could fully understand if you responded by saying my claim was false and offensive. However your article seems to imply you should then be also entitled to sue for defamation without any need to prove damage. Perhaps I have misunderstood your position but that’s how it looks to me. And if that is a correct interpretation of your position it looks completely silly to me and a recipe for jamming up the courts with all manner of trivial accounts of offense.

  3. TerjeP
    September 30th, 2011 at 07:42 | #3

    @kika

    Did the judgement say his words incite hatred? Where is this violence you speak of?

  4. andrewt
    September 30th, 2011 at 08:29 | #4

    I think we should be reducing the scope of defamation law in Australia not opening the door to Simon Singh-like cases – you could could imagine such a law chilling criticism of the catholic clergy handling of paedophile priests for example.

    The complainants apparently wanted a prompt & prominent correction & apology for the factual errors in Bolt’s piece – and if News Ltd had provided this they should not have been able to sue for damages. Of course the costs involved mean the complainants probably wouldn’t have been able to exploit our overly-broad defamation laws even if they’d wanted to – even with the power&riches Bolts thinks identifying as aboriginal gives you.

  5. Fran Barlow
    September 30th, 2011 at 08:32 | #5

    Hmmm … second attempt … Gosh I hate it when you post and then you get an error message! Mostly I copy to the clipboard first, but it’s amazing how often my failure to do so precedes a post method failure!

    Briefly — I think your approach PrQ is plausible and in a number of respects tidier, in that the matter arises entirely within the framework of tort law rather than seeming to start from statutory provision. Nevertheless, to ensure that the intended beneficiaries were not saddled with serioius costs, a public fund, administered at arms’ length from the state, would be needed to make this viable. An arrangement could provide that where damages were granted, the proportion of financial burden accepted by the funding body and private parties could determine the division of the proceeds of damage. The funding body could then be charged with delivering programs aimed at improving the standing of marginalised communities harmed by the defamatory actions.

  6. J-D
    September 30th, 2011 at 08:48 | #6

    TerjeP :
    If I said publicly that your mother is Chinese and you should stop passing yourself off as a real Australian, then I could fully understand if you responded by saying my claim was false and offensive. However your article seems to imply you should then be also entitled to sue for defamation without any need to prove damage. Perhaps I have misunderstood your position but that’s how it looks to me. And if that is a correct interpretation of your position it looks completely silly to me and a recipe for jamming up the courts with all manner of trivial accounts of offense.

    At common law, some kinds of defamatory statements were actionable without specific proof of damage. For example, if somebody spread a false rumour that you had committed a serious crime or that you were professionally incompetent, you could win a defamation action without being required to bring specific evidence of specific harm. The theory was that statements like this were so obviously damage that harm could be presumed without specific evidence (it was still open to the defendant to bring specific evidence that no harm had been done, although I imagine that would have been a difficult burden to meet in practice). Sometimes statements like this have been termed ‘defamatory per se’.

    This kind of presumption depends on social context. Traditionally, imputations that a person suffered from a ‘loathsome’ disease (such as leprosy) or that a woman was ‘unchaste’ were considered ‘defamatory per se’. I think it would be much harder to justify such a presumption in a modern context than in the one in which it was established. And, just as society no longer regards some kinds of accusation as being intrinsically harmful as was once the case, it’s reasonable to suggest that some other kinds of accusation should now be included in that category–possibly, for example, racist accusations.

    I don’t know what the current legal position on this is in Australia, but despite the fact that US defamation law is generally considered less favourable to plaintiffs than in most places, ‘defamation per se’ is still recognised in the law of most of the American States.

    Of course it’s still open to anybody to argue that the whole principle of ‘defamation per se’ is wrong and I’m not insisting that it must be correct and just solely because of its past and present acceptance. What I am saying that it’s not an entirely new principle dreamt up just for this kind of case and a fair assessment should recognise that.

  7. Bill Posters
    September 30th, 2011 at 09:05 | #7

    Surely one of the reasons to use the RDA is that, unlike defamation, no money damages are possible.

    Thus, it is a lot harder to portray the plaintiffs as money-grubbers out for a quick buck (as would definitely have happened if they’d sued for defamation).

  8. TerjeP
    September 30th, 2011 at 09:20 | #8

    J-D – in the modern social context calling somebody a racist does much more harm to reputation than calling somebody Chinese or Aboriginal. Even pejorative racial terms (slope, coon) if used publicly do far more damage to the reputation of those that utter them than those they are directed at. One of the reasons Bolt no doubt feels slighted by this verdict is that it now provides material for all manner of people to promulgate a belief that he is racist. Some will even think it is a point proven at law. One of the lawyers in the case has already refered to Bolt as being like one of the Nazi racists who practiced eugenics. Bolt is clearly offended by that accusation and it is not hard to see why given the modern cultural context. He would probably have a good case under defamation law to sue the lawyer and some have urged him to do so. However I doubt he will.

  9. Legal Eagle
    September 30th, 2011 at 09:46 | #9

    I think skepticlawyer has hit the nail on the head with her post here:
    http://skepticlawyer.com.au/2011/09/30/this-is-a-sad-day-for-adequate-research/

    I think it would be vastly more appropriate to bring these claims as individual claims for defamation.

    The problem is, as SL has pointed out, is that now Bolt can say that his right to freedom of speech has been impinged upon because his statements were offensive. It is a lot harder to look self-righteous where the basis of the action is that the statements were untrue, rather than merely offensive.

    Basically I believe that the RDA provisions are badly drafted and represent bad law, and that these kinds of issues are better dealt with by existing laws such as defamation.

  10. John Quiggin
    September 30th, 2011 at 09:46 | #10

    Terje, your post makes a pretty strong case in favor of the RDA action. As you say, Bolt has been found by the court to be a promoter of racially offensive lies. Its unsurprising that Bolt should be unhappy about this – most people are unhappy when courts find against them. Presumably you don’t dispute the facts, so what is your problem?

  11. Fran Barlow
    September 30th, 2011 at 10:06 | #11

    @Legal Eagle

    The problem is, as SL has pointed out, is that now Bolt can say that his right to freedom of speech has been impinged upon because his statements were offensive. It is a lot harder to look self-righteous where the basis of the action is that the statements were untrue, rather than merely offensive.

    That’s a “problem” that is more apparent than real. Of course he can say that. As Stalin once said, paper will take anything that is written onto it and in Bolt’s case the things he “can say” repeatedly include arrant self-serving lies. The people who accept his self-serving lies will accept this, and doubtless if civil defamation had been the action, then he’d have invited his flying monkeys to see them as vexatious litigants after money.

    The question is not whether he can say that his FoS has been truncated, but whether reasonable people think it has been in ways that are incipiently harmful to the polity. So far, it’s not clear that anyone fitting this description has, whatever one might think of the aptness of s18C.

    If the muzzle applied to the Blot were on a pitbull in public space, the public would demand that it be put down as a serious hazrd and the owner fined for want of control.

  12. TerjeP
    September 30th, 2011 at 10:18 | #12

    John – my beef is not with the RDA action. My beef is with the RDA. And my beef is on consequentialist grounds. The RDA asks courts to adjudicate on questions of what is offensive and what opinions ought to be published. If the ruling simply said that Bolt got some facts wrong then other than the waste of funds and court time it wouldn’t be of significant concern. We have plenty of vehicles for adjudication on whether commentators got facts wrong. The media spends a huge amount of time pointing out the factual mistakes of other parts of the media. You yourself have spent time pointing out factual errors made by Andrew Bolt. To suggests that factual errors warrants court action is silly. Which leaves the idea that courts should adjudicator on what is offensive. Which is just as ridiculous.

  13. J-D
    September 30th, 2011 at 10:20 | #13

    TerjeP :J-D – in the modern social context calling somebody a racist does much more harm to reputation than calling somebody Chinese or Aboriginal. Even pejorative racial terms (slope, coon) if used publicly do far more damage to the reputation of those that utter them than those they are directed at. One of the reasons Bolt no doubt feels slighted by this verdict is that it now provides material for all manner of people to promulgate a belief that he is racist. Some will even think it is a point proven at law. One of the lawyers in the case has already refered to Bolt as being like one of the Nazi racists who practiced eugenics. Bolt is clearly offended by that accusation and it is not hard to see why given the modern cultural context. He would probably have a good case under defamation law to sue the lawyer and some have urged him to do so. However I doubt he will.

    I follow what you’re saying but I don’t see what conclusion you want to reach from it.

    You might be saying that you disagree with the whole idea that some statements should be presumed, as a matter of law, to be harmful without a mandatory requirement to produce evidence of specific damage. That’s an arguable view, but, as I pointed out, in fairness it should be noted that this idea was not an innovation in the Racial Discrimination Act.

    Or you might be saying that accusations that somebody is a racist should be included in the category of statements that are presumed, as a matter of law, to be harmful without a mandatory requirement to produce evidence of specific damage. That’s also an arguable view: but it doesn’t support the conclusion that other kinds of allegations should not be included in that category; and it also doesn’t justify the conclusion that accusations that somebody is a racist should not be allowed in court judgements, or in complaints brought to the courts. I mentioned before that accusations that somebody has committed a serious crime were traditionally included in the category of statements ‘defamatory per se’: but that didn’t prevent people being charged with serious crimes, or being convicted of them.

    Incidentally, I would be curious to know what specific evidence of specific damage Bolt would be able to produce if he did sue the lawyer you mention for defamation.

  14. J-D
    September 30th, 2011 at 10:26 | #14

    TerjeP :John – my beef is not with the RDA action. My beef is with the RDA. And my beef is on consequentialist grounds. The RDA asks courts to adjudicate on questions of what is offensive and what opinions ought to be published. If the ruling simply said that Bolt got some facts wrong then other than the waste of funds and court time it wouldn’t be of significant concern. We have plenty of vehicles for adjudication on whether commentators got facts wrong. The media spends a huge amount of time pointing out the factual mistakes of other parts of the media. You yourself have spent time pointing out factual errors made by Andrew Bolt. To suggests that factual errors warrants court action is silly. Which leaves the idea that courts should adjudicator on what is offensive. Which is just as ridiculous.

    In this case the court found that false statements were made AND that they were harmful AND that reasonable efforts had not been made to check them. The court wasn’t adjudicating on any one of these questions alone, but on the combination of them. It makes a difference.

  15. Mulga Mumblebrain
    September 30th, 2011 at 10:28 | #15

    You get used to seeing outrageous bulldust from the Right, but the assertion that this judgment might lead people to think that Bolt is a racist certainly takes the cake. What might lead those with normal mental sufficiency and a little experience in human affairs to feel that Bolt is almost certainly a racist is, in my opinion at least, not just this toxic sludge of incorrect assertions and nasty, malicious and patronising invective, but scores other such matters over years. I mean to say, what further proof do we need of Bolt’s tender affection and concern for his blackfella brothers than his notorious and repetitious assertions that the ‘Stolen Generations’ did not exist, that the Royal Commission into that practise was a disgrace and that, in fact, the children were not ‘stolen’ but ‘rescued’ from hideous conditions. And there are numerous other examples one could quote. ‘If it looks like a duck, waddles like a duck and quacks like a duck, then it is probably a duck’.

  16. TerjeP
    September 30th, 2011 at 10:40 | #16

    Mulga – you’re quacking like an idiot.

  17. Chris Warren
    September 30th, 2011 at 10:43 | #17

    @TerjeP

    You always quack like that.

  18. Sam
    September 30th, 2011 at 10:54 | #18

    I’m very troubled by this third paragraph, advocating banning statements of the kind “All/most Group X members display Bad Characteristic Y.” I can think of several such statements which are both defensible, and socially useful to air.

    For example, consider the statement “Australian aboriginals are stupider than average Australians.” On the face of it nothing could be more offensive than such a statement. However, standard educational attainment tests at all levels in schools (as well as on adults) consistently show lower scores. There’s a whole lot of obvious reasons for this of course including: poor diet, alcohol fetal syndrome, substance abuse, parental disengagement etc.

    I have no doubt that were these factors to improve, the disparity would disappear and that would be a very good thing. The fact however, remains true for now. What’s more, it’s very hard to fix the root causes if you don’t correctly identify the problem in the first place.

    Criminalising frank speech about real social problems will make those problems worse, not better.

  19. TerjeP
    September 30th, 2011 at 10:55 | #19

    Don’t be a goose.

  20. September 30th, 2011 at 11:03 | #20

    John, my argument wasn’t made at LP, but here:

    sedprobatespiritus.tumblr.com/post/10763351311/andrew-bolt-racial-vilification-and-freedom-of

  21. Dan
    September 30th, 2011 at 11:04 | #21

    Sam: the problem can be expressed in a way that doesn’t (wrongheadedly, racistly) suggest something intrinsic about a group.

    Like: “Many Australian Aboriginals suffer from having fewer economic and social opportunities than their non-Aboriginal counterparts, and may, with considerable historical justification, mistrust centralised attempts to ‘fix’ things.”

    Anyone who works in policy evaluation in Australia knows that’s true, probably has some ideas for what to do about it, and furthermore knows that generalisations are completely counterproductive.

  22. Sam
    September 30th, 2011 at 11:17 | #22

    @Dan
    I wasn’t advocating centralised attempts to fix it exactly, merely that it would be good thing if the problem were fixed. I see no reason to water down the statement using words like “many.” It’s a serious problem, and we should be able to use strong language to describe it. If we use weasel words, people may think the problem is less serious than it is, and devote less effort to solving it. You’re free to disagree of course, but don’t make it illegal to use pejoratives in a constructive way.

  23. Dan
    September 30th, 2011 at 11:34 | #23

    Anyone who’s worked with highly qualified, highly skilful, highly knowledgeable people of Aboriginal heritage can see why generalisations such as this are hurtful, inaccurate, and unhelpful. The way you phrased it (for rhetorical purposes, I understand) really gives a misguided impression that the problems suffered by Aboriginal communities and people are *un*fixable.

    “Many” is not a weasel word. It’s an attempt to accurately describe reality.

  24. Dan
    September 30th, 2011 at 11:35 | #24

    (Incidentally, what you said – again, for rhetorical purposes, I grant – is racially discriminatory).

  25. Tim Macknay
    September 30th, 2011 at 11:37 | #25

    The problem is, as SL has pointed out, is that now Bolt can say that his right to freedom of speech has been impinged upon because his statements were offensive. It is a lot harder to look self-righteous where the basis of the action is that the statements were untrue, rather than merely offensive.

    I think Andrew Bolt and his supporters would still claim his freedom of speech was being stifled if the action had been based in defamation.

  26. Tim Macknay
    September 30th, 2011 at 11:50 | #26

    LE, that’s a very interesting discussion of the case over at your blog. I’m inclined to agree that the provisions of s18C are too vague and broad.

  27. J-D
    September 30th, 2011 at 11:57 | #27

    @Sam
    If you can’t see the difference between ‘Australian aboriginals are stupider than the average’ and ‘Australian aboriginals score lower marks on standardised tests of educational achievement than the average’, you’re not trying hard enough.

  28. Paul Norton
    September 30th, 2011 at 12:02 | #28

    Fran @11 – ‘As Stalin once said, paper will take anything that is written onto it’.

    Fran, I hereby declare that I first read this quote in a copy of Australasian Spartacist (February 1979 IIRC).

  29. TerjeP
    September 30th, 2011 at 12:05 | #29

    It isn’t hard to find other examples that fit Sams point. Eg “Men are more violent than women”.

  30. Sam
    September 30th, 2011 at 12:05 | #30

    @Dan
    Well I was trying to give the impression that the problems, while severe, are eminently fixable. I agree my statement was racially discriminatory. That’s my whole point. I argue that being discriminatory can be constructive, and should certainly be legal. The idea that we should rhetorically minimise the real problems suffered by a social or racial group in order to avoid giving temporary offence is to me baffling. It seems guaranteed to worsen these problems, not improve them.

    I don’t like the word “many” here because it has very little meaning. 100 people suffering educational disadvantage is “many.” We should be using stronger language than that. “Most” is a better word. “Nearly all” is even better. “On average group X performs worse than group Y on metric Z” is best.

  31. Dan
    September 30th, 2011 at 12:14 | #31

    Yes, I agree this is the sort of terminology we should be talking in. As indeed we do – whatever you think of, say, COAG’s Closing the Gap agenda, the indicators and targets expressed in decidedly robust and positivistic terms.

  32. Chris Warren
    September 30th, 2011 at 12:15 | #32

    This is useful:

    Eatock v Bolt [2011] FCA 1103

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

  33. Sam
    September 30th, 2011 at 12:22 | #33

    @J-D
    What does “stupid” mean to you then? Is there any evidence Aboriginal children score better on emotional intelligence tests? There shouldn’t be such outrage here. The fact is that poor diet, drug abuse (both prenatal and taken by the child), hydrocarbon sniffing, and parental disengagement will all ruin a developing child’s brain. It won’t make them more “street-smart,” or give them a heart of gold. It won’t lead them to live happier lives in other ways. It frankly leads to mental inferiority.

    These terrible destructive things are orders of magnitude more common in Aboriginals, and this is an outrage against human decency in a civilised nation. It might be offensive to you to hear these things, but it’s even more offensive to me that these things are true.

  34. J-D
    September 30th, 2011 at 12:42 | #34

    Sam :@J-D What does “stupid” mean to you then?

    What does ‘stupid’ mean to you? If you read something describing a person as ‘stupid’, is your first reading that it’s a reference to scores on a standardised test of educational achievement? Seriously? Are you seriously not aware that ‘stupid’ is frequently used as a term of abuse and ‘scores low marks on standardised tests of educational achievement’ seldom or never is?

    I just find myself more convinced than ever that you’re not trying hard enough.

  35. may
    September 30th, 2011 at 12:50 | #35

    attempting to portray victimhood

    because lies were identified as lies

    and claims that free speech has been denied(woe and alack)

    mists over and wafts into a penumbra of deniable denial of the free speech of the ones lied about.

    the most untoward example of this,
    is the claim by this broadcaster,
    that the position when called out
    is to retreat into the category of “entertainment”.
    “public interest”is another.
    or defender of your rights under threat from”insert ideological catch-insult here”.

    crafty fox.

  36. Sam
    September 30th, 2011 at 13:14 | #36

    Let me be even more inflammatory. Muslims are much more likely to be terrorists than the average world citizen. Is there any reason this statement should be controversial? It’s certainly true. Virtually all Muslim terrorists cite Islam as the motivation for their terrorism. Therefore, there must be a problem with (at the very least) some modern interpretations of Islam.

    Should it be illegal to point this out?

  37. J-D
    September 30th, 2011 at 13:21 | #37

    Sam :Let me be even more inflammatory. Muslims are much more likely to be terrorists than the average world citizen. Is there any reason this statement should be controversial? It’s certainly true. Virtually all Muslim terrorists cite Islam as the motivation for their terrorism. Therefore, there must be a problem with (at the very least) some modern interpretations of Islam.
    Should it be illegal to point this out?

    I don’t know whether it would be illegal. I’d be interested to know though, if we imagine the hypothetical case of somebody taken to court for saying those things and seeking to produce evidence to satisfy the court that the statements are true, what evidence you think would do the job.

  38. may
    September 30th, 2011 at 13:28 | #38

    @Sam
    how do you know?

    it’s a big world.

    all sorts of terroristic activities happen without any reporting done.

    the ones you name are the ones in the frame(murdering jerks all)
    we don’t know what’s being done in the back blocks of Korea or Mexico or Zimbabwe.

    and the broadcasting outlet under discussion at the moment is too busy spitting the dummy about other things .

    (probly got some sort of wholesale deal going with (i don’t need no steenking costed policies)tony and rob and business interests to get delivery by the truckload.—-

    no,i take that back they’d need containersfull and the young mum demographic would notice.)

  39. may
    September 30th, 2011 at 13:47 | #39

    oh and while we’re on the subject of “muslim”

    what’s going on in Bahrain?,Libya?Syria?Egypt?

    massive people powered movements happening right now.

    a couple of lines and and a sotto murmer and nothing to do with us.

    but tha boats,tha boats.

    informed commentary?

    not so much.

  40. Dan
    September 30th, 2011 at 13:49 | #40

    Sam – as far as I’m aware, it’s not illegal. It’s also, to be frank, probably statistically true.

    But in what sense does framing issues in such a way contribute to their resolution?

  41. Sam
    September 30th, 2011 at 13:51 | #41

    May, It’s a big world, but journalists exist. From Wikipedia;

    Statistics compiled by the United States government’s Counterterrorism Center present a complicated picture: of known and specified terrorist incidents from the beginning of 2004 through the first quarter of 2005, slightly more than half of the fatalities were attributed to Islamic extremists but a majority of over-all incidents were considered of either “unknown/unspecified” or a secular political nature. The vast majority of the “unknown/unspecified” terrorism fatalities did however happen in Islamic regions such as Iraq and Afghanistan, or in regions where Islam is otherwise involved in conflicts such as the West Bank, the Gaza Strip, southern Thailand and Kashmir.

    Remember, I only had to prove the weak case that Muslims are currently (last 10 years or so) more likely than average to commit terrorism. Specifically, I wasn’t claiming that most Muslims are terrorists, most terrorists are Muslim, or even that Muslims are the group most likely to commit terrorism.

  42. Sam
    September 30th, 2011 at 13:57 | #42

    @Dan
    Dan, I know it’s not currently illegal; I’m responding to JQ’s suggestion that this type of speech ought to be made so. I think that minimising language can cause a head-in-the-sand effect. Frank language to address real problems I say.

  43. Tim Macknay
    September 30th, 2011 at 13:58 | #43

    @Dan
    Under Prof Q’s proposed model, it would be illegal.

    But in what sense does framing issues in such a way contribute to their resolution?

    As I take it, Sam’s point (with which I agree) is that badly framing an issue, or expressing it in an unconstructive way, are not good reasons to outlaw particular speech.

  44. Mulga Mumblebrain
    September 30th, 2011 at 13:59 | #44

    Well it appears that I have stirred some turg-id waters, and the turg-idiots are emerging. To assert that the majority of the world’s terrorists are Islamic depends entirely on the definition of ‘terrorism’. If you take terrorism to mean the deaths of all innocents at the hands of those who wish to impose their demands on populations by terrorising them into submission, then the greatest proportion of the world’s terrorists are Western, ie Christians and Jews. The state terror of the West, whether the regime change aggressions in Iraq and Libya, with the millions of victims, or the brutal economic terrorism of sanctions regimes and Structural Adjustment Plans, has blighted two or three orders of magnitude more lives than all Islamic terrorism. And much Islamic terrorism is really resistance, just like that in Europe to Nazi rule, (the Nazis callled the Resistance ‘terrorists’, too)and much more is false-flag operations, like the ‘Salvador Option’ exercised in Iraq by the USA. Moreover Islamic ‘terrorists’ like al-Qaeda were once hailed in the West as ‘freedom fighters’ and ‘the moral equivalent of our Founding Fathers’ in Reagan’s unintentionally ironic words, and were used by the West for their nefarious purposes in Afghanistan, Bosnia, Kosovo, Chechnya, Xinjiang, Algeria and, now, Libya and Syria. Terrorism as defined by Western state propaganda is a meaningless term of abuse, designed to demonise resistance to Western brutality and aggression, which is the real terror that stalks the planet, and has done so for 500 bloody years.

  45. Fran Barlow
    September 30th, 2011 at 14:09 | #45

    @Sam

    [Muslims are much more likely to be terrorists than the average world citizen. Is there any reason this statement should be controversial? It’s certainly true. Virtually all Muslim terrorists cite Islam as the motivation for their terrorism. Therefore, there must be a problem with (at the very least) some modern interpretations of Islam.]

    1. It’s certainly not true because the questions “what is a terrorist?” and “who qualifies as a Muslim?” admit no clear answer. Much of what we would consider on the way to such an answer would be controversial. One could argue that a nation carrying out amost daily drone strikes with a non-combatant-combatant kill ratio of 10:1 was a terrorist state. That might bias the stats somewhat. Moreover, we have no precise statistics on the relationship between the size of those who qualify as Muslims and those who qualify as terrorists.

    2. As offensive as the observation would be, it is likely that s18D would offer a defence, since one might have a good faith belief that this was so, there would be no clear way to disprove it and it might arise in the course of discussion of a matter of public interest.

    Of course if you went onto say that Person X was a known terrorist, in virtue of his adherence to Islam and the propensity of Islam to produce terrorists, and this turned out to be a claim that a person with a modicum of investigative comepetence ought to have known was wrong, then the good faith defence collapses. You could say this in private but if you say it in public and your words are likely to be taken seriously by a substantial audience then we are again ticking the boxes for s18C and the Blot matter.

  46. Dan
    September 30th, 2011 at 14:25 | #46

    Mulga, Sam – quite right. I was uncritically using the lay understanding of the term “terrorist” which connotes irregular warfare.

  47. sam
    September 30th, 2011 at 14:31 | #47

    @Fran Barlow
    Point 1 taken. It’s true given certain interpretations of the word “terrorists.”

  48. Nick R
    September 30th, 2011 at 14:34 | #48

    The fact that it is difficult to precisely define what constitutes defamatory speech doesn’t mean that the libertarian solution (which admittedly has its merits) is automatically correct.

    Awkwardness of this nature is typical in almost all conflicts where it is difficult to establish unambiguous right and wrong. For example if person X kills person Y, it may be purely in cold blood (and therefore contemptible) , purely in self defence (totally justified) or somewhere in the middle. To me the idea that we should forget about, or have a high tolerance for potential murder, defamation or anything else because it is hard for us (all non experts) to grapple with seems misguided.

  49. Nick R
    September 30th, 2011 at 14:39 | #49

    @Tim Macknay
    Although I do agree with this point too.

  50. September 30th, 2011 at 14:42 | #50

    One of the most irritating characters in the media to me is our dear Bolty. Free speech is not defamation and it does not allow you to incite hatred or violence. Look at the old example of shouting “Fire!” in a crowded cinema.

  51. Fran Barlow
    September 30th, 2011 at 14:45 | #51

    @sam

    And the term Muslim …

  52. TerjeP
    September 30th, 2011 at 14:50 | #52

    @Paco

    This was put to Bolt on MTR radio yesterday and he agrees. He thinks there ought to be such limits on free speech. He just does not think he was inciting hatred or violence and apparently the judge agrees. He is guilty of offending people and being inaccurate. Not inciting hatred or violence.

  53. KB Keynes
    September 30th, 2011 at 15:04 | #53

    Has this decision stopped Bolt from commenting?
    no

    Has Bolt learnt anything and apologised for making egregious errors?

    No.
    sounds very Catallaxy

  54. TerjeP
    September 30th, 2011 at 15:10 | #54

    @KB Keynes

    It has stopped a lot of comments and his articles have apparently required extensive review by lawyers. However if you conclude that it has not stopped him at all then what was the point of all that expense?

    My guess is that there will be an appeal.

  55. Ken_L
    September 30th, 2011 at 15:43 | #55

    To inject a note of comic relief, the contemptible Mark Steyn (to whom I refuse to link) states solemnly today that ‘Andrew Bolt is Oz’s leading political columnist, in print, radio, TV’.

  56. sam
    September 30th, 2011 at 15:44 | #56

    @Fran Barlow
    Given my implied definition of the word terrorist, what definition of “Muslim” would make my statement incorrect?

  57. TerjeP
  58. September 30th, 2011 at 15:53 | #58

    @TerjeP

    I haven’t really been following the issue due to his habit of intensely annoying me, so I don’t really know the ins and outs of the case.

  59. sam
    September 30th, 2011 at 15:54 | #59

    Steyn is certainly not my kind of person. Probably most of his claims are histrionic over-exaggeration. Just on the off-chance that one or two of them aren’t however, I’m very glad to have him around.

  60. KB Keynes
    September 30th, 2011 at 16:00 | #60

    Well of course it would need a lot of input from Lawyers given his inability to discern what truth is.

    A front page of the newspaper says you are badly wrong Terje!

  61. Legal Eagle
    September 30th, 2011 at 16:08 | #61

    @Fran Barlow
    my personal concern is not so much about how provisions like this might apply to Bolt in this instance, but how they might apply to others in the future.

  62. Fran Barlow
    September 30th, 2011 at 16:31 | #62

    @sam

    Given my implied definition of the word terrorist, what definition of “Muslim” would make my statement incorrect?

    Any definition that showed that killing people at random, or reckless disregard for the lives of non-combatants was contrary to Islamic doctrine, and that those who did this put themselves outside the bounds of the faith.

    It is very clear that many who engage in bombing campaigns, place IEDs on raods etc know very well that their victims will include others professing Islam. Indeed, some attacks in Pakistan have focused on Mosques, and have been arranged expressly to kill practicing Muslims. Pakistan has suffered somethinjg like 30,000 dead from such attacks, the overwhelming majority of them professing Muslims. One might say the same in Iraq or Afghanistan.

    The conclusion is forced — the jihadis do not regard all ostensible Muslims as bona fide Muslims — and they must, in their view, be the adherents of some other faith, whereas they are the representaives of authentic Islam. Conversely, one suspects that the victims of these attacks regard the jihadis as enemies of Islam and its tenets. Both groups are willing to back this judgement with their lives, making the claims serious ones.

    Yet they both cannot be true. At most, one is correct and the other false.

    Now I am no theologian and no expert on what the qualifications for being a Muslim or being excluded from the faith are. I don’t know for certain what it prohibits and demands. It does seem though that being a Muslim amounts to more than a mere profession of faith and there is therefore a serious doubt at least about whether being a “terrorist”, in the tabloid press sense, is compatible with it, since most professing Muslims would reject the suggestion, and our own Federal police advise that those seeking to engage in “Islamic” jihadi activity here were turned in by professing Muslims who were concerned at the activies of the putative jihadis.

  63. Fran Barlow
    September 30th, 2011 at 16:42 | #63

    @Legal Eagle

    my personal concern is not so much about how provisions like this might apply to Bolt in this instance, but how they might apply to others in the future.

    Ah the old thin end of the wedge, slippery slope claim. It’s good for all occasions.

    I’m inclined to think that s18C probably could be tidied up a bit, and as I’ve said above, I am sympathetic to what PrQ says on use of defamation law, but in the end, it seems to me that there is no obvious threat to personal freedom posed by the law as it stands. No great sanctions are involved. Blot could have avoided them in any event by simply recanting palpably untrue claims — claism which he has described as of no serious consequence. An unremarkable defamation case would almost certainly have cost him or his employer far more dearly.

    That raises an obvious question — did Blot/News Ltd pursue this matter as part of a marketing strategy to position Blot as martyr? Quite possibly, IMO. If so, his claims that his speech have been infringed would appear more ludicrous yet.

    If one looks at the consequences of this case, we have had a fairly wide-ranging public discussion on what is and is not apt in addressing matters of ethnicity, on what we think we mean by free speech, on professional standards in journalism and so forth. More people now know that Blot recklessly ignores the truth when it suits him. That would probably not have occurred if there had been no s18C. That rather supports the view that s18C of the RDA has worked pretty well.

  64. TerjeP
    September 30th, 2011 at 16:48 | #64

    Fran – we had best wait for the appeal process to be completed before drawing conclusions about what has worked.

  65. TerjeP
    September 30th, 2011 at 16:52 | #65

    @Legal Eagle

    LE – the articles you wrote on this topic on your blog are excellent. Ultimately I don’t agree with you regarding the RDA but I’d encourage people to read your work regardless.

    http://skepticlawyer.com.au/2011/09/29/a-more-detailed-analysis-of-the-bolt-case/

  66. sam
    September 30th, 2011 at 16:55 | #66

    @Fran Barlow
    Alright, so if you (a non-muslim) say that one of the defining properties of being a muslim is rejection of terrorism, you obviously win. I’d prefer to go with self-profession as a better defining standard. If a person talks about Allah a lot, prays 5 times a day, wants to go to Mecca, and says they follow the tenets of Islam, I’m going to say they’re a muslim.

    As for the more general point regarding mainstream muslim support for terrorism, I’d direct you to the various Pew studies on the topic. Support around the world is thankfully declining, but is still shockingly high. Liberals ignore or downplay this fact at their peril.

  67. Fran Barlow
    September 30th, 2011 at 17:06 | #67

    @TerjeP

    Fran – we had best wait for the appeal process to be completed before drawing conclusions about what has worked.

    So far it has worked. Neither you nor I can stop time so perhaps in a years’ time I will have a different view.

    @sam

    Alright, so if you (a non-muslim) say that one of the defining properties of being a muslim is rejection of terrorism, you obviously win.

    I never said that. If most professing Muslims say that however, that surely is salient. I’d be shocked if deliberately killing professing Muslims was permissible under Islam, and wasn’t something that would have you damnded for all eternity, but as I said, I’m no theologian.

  68. Tim Macknay
    September 30th, 2011 at 17:08 | #68

    @Fran Barlow

    That raises an obvious question — did Blot/News Ltd pursue this matter as part of a marketing strategy to position Blot as martyr?

    That doesn’t really make sense, Fran. The plaintiffs pursued the matter, not Andrew Bolt or News Ltd. Andrew Bolt constantly writes highly contentious and inflammatory material, at least some of which flirts with being defamatory. I don’t think he or News Ltd could necessarily predict that soemone would sue him over those particular articles.

    @Terje:

    Fran – we had best wait for the appeal process to be completed before drawing conclusions about what has worked.

    Best wait until an appeal process has commenced before talking about waiting until it has been completed!

  69. Legal Eagle
    September 30th, 2011 at 17:57 | #69

    @Fran Barlow
    As I said on my own blog, I don’t really like legal regulation on the basis of whether someone is offended or not because it’s so subjective and particular, and because it has the possibility of getting people into trouble just because of tone as much as anything else.

    I quite understand that you may differ from me on this point – and in fact, say 10 years ago I was probably closer to your point of view on these matters, but as I’ve had more experience in law, I’ve had less and less confidence that it can fix the problems of society or that it is always the best mechanism to ensure appropriate behaviour.

  70. Legal Eagle
    September 30th, 2011 at 17:58 | #70

    @Tim Macknay
    I reckon it’s a dead cert that there will be an appeal. Whether it will succeed or not is another question.

  71. rog
    September 30th, 2011 at 18:13 | #71

    I wouldn’t bet on appeal, Bolt untruths would be given a further airing and as he isn’t paying the bills the decision will come from higher up the food chain.

    And an appeal would be on a point of law, which would be what?

  72. Freelander
    September 30th, 2011 at 18:25 | #72

    An appeal outcome is a dice roll. Unfortunately, although you ought to be able to predict the decision a court will reach, on a politisized question like this you can’t.

  73. Tim Macknay
    September 30th, 2011 at 18:41 | #73

    @Legal Eagle
    I think an appeal is certainly possible, but I wouldn’t go as far as to say it’s certain. As rog says, HWT might not fund an appeal, either because its legal advice suggests there is a low prospect of success, and/or because of a judgment that the continued publicity would be negative, on balance. Then Andrew Bolt would have to fund an appeal himself. Perhaps he would, but who knows?

  74. Robert W
    September 30th, 2011 at 18:50 | #74

    Johnathan Holmes has some good comments on The Drum:

    http://www.abc.net.au/news/2011-09-29/holmes-bolt-bromberg-and-a-profoundly-disturbing-judgment/3038156

    “And Justice Bromberg makes it clear that if you write something that has a tendency to offend on the grounds of race, but you want it to be considered reasonable and in good faith, you won’t necessarily get away with opinions that would in defamation law be covered by the fair comment defence – opinions that are extreme, or illogical, or which “reasonable people might find abhorrent”.

    On the contrary, says Justice Bromberg (in par 425), Andrew Bolt failed the test of reasonableness and good faith because “insufficient care and diligence was taken to minimise the offence, insult, humiliation and intimidation suffered by the people likely to be affected by the conduct and insufficient care and diligence was applied to guard against the offensive conduct reinforcing, encouraging or emboldening racial prejudice.”

    And he specifically mentions, not just the wrong facts, but “the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides.”

    In other words, if you want the protection of section 18D of the act when writing about race in a way that’s likely to offend, you need to be polite, not derisive, calm and moderate rather than provocative and inflammatory, and you must eschew ‘gratuitous asides’.”

  75. TerjeP
    September 30th, 2011 at 21:06 | #75

    For those who have not read the analysis of this case by Legal Eagle it is worth a look:-

    http://skepticlawyer.com.au/2011/09/29/a-more-detailed-analysis-of-the-bolt-case/

    The article is well written and gets into the guts of the legal detail. I don’t agree with all her conclusions bit I think she makes a most worth contribution to the debate.

  76. Freelander
    September 30th, 2011 at 22:52 | #76

    @TerjeP

    Yes. Legal Eagle makes a very good contribution. In contrast, Jonathon Holmes contribution essentially nil. Media Watch used to be enough in itself to justify the ABC’s existence. Now, under Holmes, they should call it Trivia Watch. Under the new ownership the program only perpetuates the ABC’s reputation as a sheltered workshop.

    One of the many regrettable aspects of the Bolt decision is the role the judiciary may now habitually take on as a civility police.

  77. sam
    September 30th, 2011 at 22:53 | #77

    “most professing Muslims”

    Which brings us back to those depressing Pew polls.

  78. sam
    September 30th, 2011 at 22:56 | #78

    But my point here is not to prove that I’m definitely right, just that I’m not definitely wrong. John Quiggin seems to be proposing laws that would criminalise such speech, which I think would be wrong.

  79. Legal Eagle
    October 1st, 2011 at 01:18 | #79

    @TerjeP
    Thank you! :-) I didn’t think you (nor many of the other libertarianish people) would agree with me on the more general RDA point; I suspect SL doesn’t agree with me either…

  80. Mulga Mumblebrain
    October 1st, 2011 at 05:55 | #80

    ‘Depressing’ Pew polls don’t, of course, define ‘terrorwism’. Those ‘depressing’ Moslems who keep all Right-thinking people awake at night with fright, might just, conceivably, see drone missile attacks on sleeping villages in Pakistan and Afghanistan as ‘terrorwism’. I know that we paragons of every Western ‘moral value’ know that they are merely a form of sanitation, where evil ‘terrorwists’ (I prefer the Zionist pronunciation) 90% of whom are civilian ‘collateral damage’, are obliterated, but the ‘evil-doers’ insist on seeing them as women, old men and children.
    Moslems might also see bombing wedding parties, then the consequent funerals as ‘terrorwism’. They might see the nightly death-squad Special Forces raids in Afghanistan, now running at several per night, with their killings, on the spot, of both the resistance and anyone else who ‘gets in the way’ (if I might paraphrase Jabotinsky, in many ways the Godfather of the entire ‘War on Terror) as ‘terrorwism’. But we in the morally supreme West know better, don’t we? We know that their deaths, the millions of them since the West first started malignly interfering in the region, are of no concern, whatsoever. But, if any of them dare kill one of us, we Western demi-gods, out of revenge, in retaliation for decades of utter cruelty, or to drive our killers from their countries, why that is evil incarnate, and it retrospectively and prospectively justifies every murder in the name of ‘Western Civilization’.

  81. Mulga Mumblebrain
    October 1st, 2011 at 06:13 | #81

    Bolt and all the other scores of Rightwing hatemongers that dominate our exclusively Rightwing MSM do not exhibit a lack of ‘civility’. They are preachers of hatred, red in verb and noun, of contempt, of derision, of general all-round maliciousness and viciousness. The MSM, News Corpse in particular, does not practice ‘free speech’. It targets groups and individuals, for abuse, vilification and denigration. It’s not just blackfellas, it’s Moslems, environmentalists, trade unionists, ‘do-gooders’, ‘latte-sippers’ etc. Its coverage of certain questions, such as anthropogenic climate destabilisation, is very nearly 100% one way, with the actual truth-tellers denied the ‘oxygen of publicity’ while being relentlessly vilified as ‘alarmists’, liars, conspiracists and ‘water-melons’. And ‘free speech’, such as it is, only exists for the Right. The non-Right have no national newspapers, no talk-back outlets, nothing but the babble of the internet, which is itself subject to considerable censorship by ‘moderators’ and other thought police. The Right’s conflation of its relentless and increasingly frenetic hate and fearmongering with ‘freedom of expression’ is typically contemptible, and deserves not a moment’s consideration. That, for once (if you forget Switzer having his hand slapped for abusing the Palestinians)one of the hate-peddlers has been called to account, is a happy day, for sure. To see Bolt’s face, as if he’d eaten a lemon, and to hear the pitiful humbug of his appeal to our common humanity, (which he, in his propagandising, has never respected)was priceless.

  82. Fran Barlow
    October 1st, 2011 at 07:39 | #82

    @Tim Macknay

    You quoted me as follows:

    That raises an obvious question — did Blot/News Ltd pursue this matter as part of a marketing strategy to position Blot as martyr?

    then continued:

    That doesn’t really make sense, Fran. The plaintiffs pursued the matter, not Andrew Bolt or News Ltd. Andrew Bolt constantly writes highly contentious and inflammatory material, at least some of which flirts with being defamatory. I don’t think he or News Ltd could necessarily predict that soemone would sue him over those particular articles.

    It seems you’ve misread my claim. I’m aware that News Ltd diudn’t initiate the action nor might they have anticipated it but they might have disavowed the objectionable passages and apologised. I doubt that administrative inertia was the best explanation for their failure to do so. It would surely have been a commercial decison.

    @Legal Eagle

    I quite understand that you may differ from me on this point – and in fact, say 10 years ago I was probably closer to your point of view on these matters, but as I’ve had more experience in law, I’ve had less and less confidence that it can fix the problems of society or that it is always the best mechanism to ensure appropriate behaviour.

    It seems on your account that your erudition in matters of law greatly exceeds mine. Nevertheless, I share your scepticism that law is typically the best means to ensure the maximisation of public goods, or the widest scope for private parties to realise legitimate personal claims. That said, I continue to believe that in an imperfect world, the law is often to be counted amongst the necessary conditions for achieving such objectives. The law is clumsy and perforce, somewhat inflexible, but at times there is little better available.

  83. Fran Barlow
    October 1st, 2011 at 07:52 | #83

    @Paul Norton

    Nice catch. It is true though:

    Comrade Plekhanov was right a thousand times over when he said that the Bund “is adapting socialism to nationalism.” Of course, V. Kossovsky and Bundists like him may denounce Plekhanov as a “demagogue” – paper will put up with anything that is written on it – but those who are familiar with the activities of the Bund will easily realize that these brave fellows are simply afraid to tell the truth about themselves and are hiding behind strong language about “demagogy. “…

    From: Stalin, J. V (1913) Marxism and the National Question

  84. John Quiggin
    October 1st, 2011 at 09:38 | #84

    @Robert: I can’t say I’m alarmed by this analysis, although I can see why both Holmes and Bolt would be. In essence, it says that your defence of fair comment may fail if you intersperse your discussion of these sensitive issues with snarky asides, personal attacks and so on. What’s the problem with this? In what concrete way is our capacity for serious discussion of these issues constrained by such a requirement? And, given that it only applies to this particularly sensitive question, it’s not as if we are going to run out of oportunities for snark and derision.

    That said, it’s worth restating that this is just conjecture on Holmes part. The facts of the case were that Bolt made a series of recklessly false and defamatory statements, and that he is personally fortunate that the action was taken under RDA and not in pursuit of monetary damages.

  85. John Quiggin
    October 1st, 2011 at 09:52 | #85

    Sam, you’ve consistently ignored the fact that truth is a complete defence under defamation law. So, if you could prove your claims in court you’d be home free (I have to say, you haven’t done a great job in this thread)

    I don’t see any problem in making racist lies the subject of civil action by members of the race defamed. If you think lying about a whole race of people should be subject to lower standards than lying about one person, perhaps you should explain why.

  86. TerjeP
    October 1st, 2011 at 10:02 | #86

    In essence, it says that your defence of fair comment may fail if you intersperse your discussion of these sensitive issues with snarky asides, personal attacks and so on. What’s the problem with this?

    How can you measure the tone and level of snark in a piece of commentary? It is terribly subjective. I got referred to on this site as a “white male” some time ago and whilst factual it was in my view also snarky. And what of those t shirts that say “White people make me nervous”? What about when they are worn by popular commentators on your ABC. What about when the Masadonian newspaper in Victoria refered to Greeks as monstrous freaks and the discrimination review concluded it was no big deal. Can I now safely refer to Greeks as monstrous freaks?

  87. TerjeP
    October 1st, 2011 at 10:07 | #87

    If you think lying about a whole race of people should be subject to lower standards than lying about one person, perhaps you should explain why.

    I can see how you might conclude that Bolt lied about individuals and about certain policies but what lies did he tell about an entire race. And assuming somebody does lie about an entire race surely the onus of proof ought to be on showing it is a lie rather than showing it is true. If it is a crime to say white people can’t jump then you ought to prove that they can.

  88. Ikonoclast
    October 1st, 2011 at 10:25 | #88

    It is clear that Bolt was “dog whistling” although it was such clumsy and inept dog-whistling that much of it was in the audible range.

    When an entire culture is destroyed and its people dispossessed of land and rights, the result is always horrible. All modern negative aspects of the state of aboriginals and aboriginal culture in Australia are still a result of the imperialist conquest, colonising, marginalising and patronising process. Bolt’s attack was poorly researched, dishonest and nasty. Such writing and speech encourages envy (where it is most inappropriate) and hatred.

    It is indefensible, yet the libertatians rush to defend it. I am not surprised.

  89. Chris Warren
    October 1st, 2011 at 11:35 | #89

    @Ikonoclast

    Yes, once there is such anarchistic liberty, as propounded by some – the strong or those with any advantage attack, invade, misrepresent and blame the weak.

    It all leads to the thug rule of capital and mafia.

  90. October 1st, 2011 at 11:52 | #90

    Pr Q said:

    On the first issue, Mark Bahnisch (at LP, no link because of an annoying bug that stops me reaching the site from here) makes the point that the complainants wanted to address the attack on indigenous people in general embodied in Bolt’s piece, rather than simply the attack on their individual reputations.

    There was no “attack on indigenous people in general embodied in Bolt’s piece”. That is a political scare tactic used by the plaintiff, using the hoary old cry of “racism” to shut down any criticism of self-appointed spokespersons for interest groups who have exploited white uneasiness over indigenous disadvantage.

    I have visited the NT Aboriginal out-stations on multiple occasions and can assure readers that the ATSIC old guard have very little in common with the interests or lifestyle of traditional aboriginals, however they are defined. The ATSIC push are part of the problem, not solution, of indigenous social problems.

    The liberal media-academia complex have mostly abandoned any pretence of defending the principle of free speech, defaulting to the fundamental Leninist principle of “Who/Whom” in siding with the remnants of the first wave of Aboriginal activists. We saw the same complete rejection of intellectual freedom in the cases of Andrew Fraser and Larry Summers and James Watson and Satoshi Kanazawa. Obviously someone’s head must be stuck on a pike every few years or so, pour encourage l’autres.

    Its par for the course for Mark Bahnisch to operate on the Leninist principle exposing the hollowness of his committment to free speech. I wonder if Pr Q really wants to throw his lot in with this unsavoury crowd, or am I missing some nuanced legalistic point?

  91. Chris Warren
    October 1st, 2011 at 12:21 | #91

    @Jack Strocchi

    If you attack one because of a characteristic or behaviour – you impliedly attack all who share the same characteristic or behaviour, and attack all those who support them.

    If I point out that one specific criminal should be gaoled – it is embodied in this that all equal criminals also go to gaol.

    Of course all the criminals would argue otherwise and complain of unfair tactics etc – but we can see through this.

  92. TerjeP
    October 1st, 2011 at 13:03 | #92

    The assertion that Bolt was being racist, as in implying that people of one race are inferior to another, is utter rubbish.

  93. Alan
    October 1st, 2011 at 13:16 | #93

    For a particularly smarmy defense of of Bolt, read Mark Textor today. Bolt is polite. Oh, well, in that case, it’s OK. Think what he could get away with if he had a white picket fence!

  94. Fran Barlow
    October 1st, 2011 at 13:41 | #94

    @John Quiggin

    In essence, it says that your defence of fair comment may fail if you intersperse your discussion of these sensitive issues with snarky asides, personal attacks and so on. What’s the problem with this? In what concrete way is our capacity for serious discussion of these issues constrained by such a requirement?

    The short answer is that it isn’t. Tone of voice is not substantive. In any event, had the Blot rant made no specific and false claims about any person, he could have been as derisive or sarcastic as he wished — so the essential element, the cultural collagen if you will, was the inclusion of the defamatory material against named individuals.

    I don’t think it is so however that truth is a complete defence to defamation. Those revealing pictures of Andrew Ettinghausen some years ago weren’t false, but their publication was held to have defamed him as it created the false impression that he was the sort of person who was happy to expose himself in public.

    Truth is a defence when the matters raised are deemed to be germane to a matter of public interest (which is not the same as being a matter in which sections of the public would be interested). Thus, declaring that celebrity X had an alcohol problem would be defamatory, unless it could be shown that it had implications for public safety, his/her capacity to discharge a public duty etc.

  95. Fran Barlow
    October 1st, 2011 at 13:47 | #95

    @TerjeP

    The assertion that Bolt was being racist, as in implying that people of one race are inferior to another, is utter rubbish.

    That definition does not cover the field for racism, Terje. Racism is a far more nuanced thing than that, and can include support for measures that would prejudice the life chances or legitimate claims of any group by ostensible ethnicity, or as here, the claim that people are exploiting their ostensible ethnicity to claim advantages to which they are not properly entitled, that their assertions of ethnic identity are disingenuous, and that all who asserted such identity on the basis that the persons nominated by Blot did were similarly unethical, or stealing from those more entitled etc …

  96. Fran Barlow
    October 1st, 2011 at 14:06 | #96

    @Jack Strocchi

    pour encourage l’autres.

    Ugh …

    If you are going to be pretentious, you need to get your pretensions right.

    1. You need the infinitive for the idiomatic “in order to … {verb}”
    2. Since “others” (autres is plural, you need the plural definite article “les”.

    Hence:

    pour encourager les autres

    The original reference is to the words of Voltaire in Candide

    Dans ce pays-ci, il est bon de tuer de temps en temps un amiral pour encourager les autres

    Usage Note: You also made this same mistake in a post here called “Unhelpful” 14/12/08

  97. Robert W
    October 1st, 2011 at 14:26 | #97

    “In essence, it says that your defence of fair comment may fail if you intersperse your discussion of these sensitive issues with snarky asides, personal attacks and so on. What’s the problem with this?”

    On the scale of attacks on freedom of speech or thought, it doesn’t rate that highly. But like Skepticlawyer I feel like dickish and offensive behaviour is usually best regulated by social norms rather than the formal legal system.

    “On balance I feel that it is inappropriate to use the law to force people to write “non-offensively”, no matter that my personal preference is generally to deal with others in a way which is respectful.”

    Sometimes snarkiness is justified or required to bring attention to an issue. And establishing the precedent that being offensive is in itself sufficient to take someone to court seems dangerous, though if I were sure it would be confined to only this issue I wouldn’t worry too much. Finally it’s hard to see how this kind of law does much to stop Bolt’s ideas and attitude being promoted in practice.

  98. Fran Barlow
    October 1st, 2011 at 15:12 | #98

    @Robert W

    The broader point though Robert is with the iteration of the slippery slop methodology. Just as laws cannot in themselves establish and protect freedom of speech, neither can their silence on such matters suffice to imperil it. There are after all, no specific laws in this country protecting free speech, and yet there’s little evidence in practice that speech is any more fettered here in practice than in the US where there is such a provision at Federal level.

    Talk of this being “a dark day for free speech” would thus be massively overstating matters, even if what seemed to be constrained by this ruling was the scope of individuals to comment substantively on some matter.

    One of the things that separates Australia from autocracy is the widespread acceptance by the political class, the bureaucracy and pretty much anyone who bothers to pay attention that speech ought to be left unfettered unless there is a compelling reason to fetter it. The population is substantially literate, and fancies that it can speak truth to power and tell authority where to get off. So strong is this view, that many people (wrongly) believe that free speech forms part of our laws, or is amongst our “rights”.

    The Soviet Constitution of 1936, on the other hand, asserted inter alia the right of free speech, but its political class and bureaucracy had never known of a time in the country’s history when speech was unfettered, and could scarcely imagine how it might work. Then population as whole was largely illiterate, and utterly dependent on those who were not to advocate on their behalf. In short the words of the constitution were radically at odds with lived reality.

    That’s why the slippery slope angst over this is vacuous.

  99. Freelander
    October 1st, 2011 at 15:53 | #99

    @Robert W

    Have to agree with that.

    And if someone maligns a whole race, if such a thing even exists, then it is best dealt with by social norms. No so called race is damaged by the single attack of a single individual when there are good social norms.

    Where a society can pass a law to punish such a thing the social norms are certainly strong enough to deal with the culprit. Use of a law in that case only makes a martyr of the person and hence doesn’t deal with them as effectively. Where the social norms are not there to punish the culprit, the law will either never have existed or will have been repealed.

    It is better to have racists out in the fresh air where they are more easily identified and their thoughts and assertions can be challenged than have them whispering to each other in dark places.

    That’s why a free press would be a nice thing. A Murdoch free press.

    Bolt has been made the victim in some eyes. And has managed to sell even more papers. He and his master are laughing all the way to the bank.

  100. sam
    October 1st, 2011 at 15:56 | #100

    @John Quiggin
    “you haven’t done a great job in this thread”

    Well I think I have. You’ll have to be more specific about what points of mine you disagree with before I can do better. I could give more links showing the education gap between aboriginals and the rest of Australia (eg http://cms.curriculum.edu.au/anr2004/ch10_literacy.htm) but I’m sure you’re already aware of the general problem. Perhaps you’re not convinced of the link between a dysfunctional culture and the mental stunting of its children?

    “If you think lying about a whole race of people should be subject to lower standards than lying about one person, perhaps you should explain why.”

    Well to start, I also want individual defamation laws greatly weakened. I don’t think someone acquitted of a crime ought to be treated by civil society as though they are certainly innocent. I don’t have much respect for criminal courts in general, and I don’t think we have a good system for finding out the truth of a matter. Our system doesn’t even try to do that. Therefore, I don’t want to be forced to agree with the “official truth” arrived at by this flawed process. It ought to be allowed for a newspaper to say “We still think Mr Smith probably shot Mr Jones.” I also don’t think in a defamation suit one should have to prove one was definitely right, the onus should be on the aggrieved party to prove one was definitely and knowingly lying about some concrete thing. Even then, I wouldn’t want large damages. Courts are a huge drain on our society’s resources. We should use them less.

    It is also true I want even less rights for groups than for individuals. My reasons are as follows.

    Clearly objectionable statements, when made in public, do very little real harm to the group being defamed. They do great harm to the defamer. When the Westboro baptist church in the US says “God hates fags. God is punishing the world for not stoning them. God hates you all,” gay people are not made worse off. If anything, the more moderately objectionable religious bigots in mainstream churches are tainted by association with the extremists, and homophobia is less tolerated. I think society actually progresses faster by letting the worst people air their views.

    Other statements about groups which are not as clearly objectionable may be right or may be wrong. Truth there is often in the mind of the beholder. A judge has only one mind, and it’s twisted into various contortions by legal absurdities and political bias. The best way to judge whether an idea has merit is civilised discussion in a society of many minds. If an idea is determined to have no merit, it’s progenitor suffers a reduction in reputation. If otherwise, resources are devoted to fixing a new problem. This seems clearly better than banning discussion at the start. Just saying “We’ll take you to court and if you can convince one person you’re reasonable you won’t be punished,” isn’t good enough. The threat of this punishment will strongly dampen the desire to speak out about a perceived problem.

    Finally, I don’t think the onus should be entirely on me to explain why the laws shouldn’t be made more severe. You should say why you think being publicly negative about a social group is so very harmful to its members that more intervention is justified.

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