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.
John Quiggin 
@sam
And the term Muslim …
@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.
Has this decision stopped Bolt from commenting?
no
Has Bolt learnt anything and apologised for making egregious errors?
No.
sounds very Catallaxy
@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.
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’.
@Fran Barlow
Given my implied definition of the word terrorist, what definition of “Muslim” would make my statement incorrect?
Here it is Ken:-
http://www.nationalreview.com/corner/278707/re-free-speech-disaster-australia-mark-steyn
@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.
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.
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!
@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.
@sam
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.
@Legal Eagle
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.
Fran – we had best wait for the appeal process to be completed before drawing conclusions about what has worked.
@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/
@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.
@TerjeP
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
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.
@Fran Barlow
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:
Best wait until an appeal process has commenced before talking about waiting until it has been completed!
@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.
@Tim Macknay
I reckon it’s a dead cert that there will be an appeal. Whether it will succeed or not is another question.
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?
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.
@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?
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’.”
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.
@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.
“most professing Muslims”
Which brings us back to those depressing Pew polls.
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.
@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…
‘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’.
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.
@Tim Macknay
You quoted me as follows:
then continued:
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
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.
@Paul Norton
Nice catch. It is true though:
From: Stalin, J. V (1913) Marxism and the National Question
@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.
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.
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?
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.
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.
@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.
Pr Q said:
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?
@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.
The assertion that Bolt was being racist, as in implying that people of one race are inferior to another, is utter rubbish.
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!
@John Quiggin
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.
@TerjeP
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 …
@Jack Strocchi
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
“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.
@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.
@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.
@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.