September 30, 2011 | Nick

Freedom of speech, freedom of expression and the Bolt decision

Those in doubt that the Andrew Bolt case is about free speech need only think about the contortions of logic necessary to dismissing the proposition that it is about free speech.

On his blog, my friend Mark Bahnisch says that “free speech is not at issue here” before observing that “[f]ree speech, as the judgment in fact indicates, must be speech that is accountable to truth”.  He goes on to draw a distinction between “free speech” and “freedom of expression” before saying “[f]ree speech ought to be both in service to the truth, and oriented to its discovery”.

Dr Anita Heiss, one of the applicants in the case, said something similar in her statement following the result.  She adopted these words of another writer, Dr Rosie Scott:

“Free speech is the cornerstone of genuine democracy, but when writers publish disinformation dressed up as fact, lies as truth, slander as objective evaluation and call it free speech, they are devaluing its very essence and betraying all those who’ve fought for it.”

Another of the applicants, Pat Eatock has said that it is not about freedom of speech but about professionalism.

All of these things ignore the simple fact that the people who sued Bolt sued him because they were offended by what he said and they reckoned that he should not have been allowed to say it.  There were reasons behind why they thought that he should not have been allowed to say it, but ultimately they wanted him punished so as to make other people stop and think before they say something offensive.

There are, of course, all sorts of limitations on freedom of speech in particular, and freedom of expression (a superset of speech) in general.  Defamation is the one most commonly thrown around, but there are others.  Sedition is an offence.  So is incitement to violence.  Courts can prohibit publication of proceedings where the interests of justice demand it.  In commerce, misleading and deceptive conduct is prohibited.  There are all sorts of circumstances in which disclosure of information is prohibited.

The thing is, generally laws that impinge on freedom of expression are drawn narrowly; not so with section 18C of the Racial Discrimination Act.  All that need be demonstrated is that a person or a group of people is reasonably likely to be offended by conduct undertaken in public.  If you sit in a café and take the Palestinians’ side in an argument with a friend about the conflict with Israel, the chances are that a large section of the Jewish population would be offended by your remarks.  You would be liable unless you could demonstrate that you were acting reasonably, in good faith, and pursuing the argument “for a genuine purpose in the public interest”.

Of course, you may be able to demonstrate all of that, but you would have to go to Court to do it.  It isn’t free speech if you have to litigate to find out whether you’re allowed to say it.

Staying with that example, compare two possible scenarios.  Imagine two people taking exactly the same stance: defence of the Palestinian position in the conflict with Israel.  One is taking the position because he has thought long and hard about it, has read up on the conflict and has come to the view that the Israeli position is unreasonable.  The other is merely an anti-Semite who would always take sides against the Jews and has no reasoned basis for his position.  The two of them could say exactly the same thing (eg: “The Jews are murdering innocent Arabs”).  One of them would have a decent case for saying that he was acting reasonably and in good faith.  The other would not, because he was acting on nothing more than his prejudice.  For saying the same thing, in the same place, in the same tone, one could be punished under this legislation and the other be left alone.

That outcome is, frankly, bizarre.  It has no analogue in defamation law.  If you’re going to avoid liability for defamation on the basis of reasonableness of your comments, generally you will have to give the audience the facts as well as your view so that members of the audience can make up their own minds based on the facts.

The outcome is all the more bizarre for the fact that in either circumstance, the person or class will be just as offended.

Things get scarier.  Despite Mark Bahnisch’s careful distinction between freedom of expression and freedom of speech, it is clear that section 18C is meant to extend to freedom of expression, for example, through art.  So much is clear from section 18D which creates an exemption, inter alia, for “anything said or done reasonably and in good faith … in the performance, exhibition or distribution of an artistic work”.  A painting can be a basis for liability; so can a sculpture; so can a song.

What if Andre Serrano had taken a photograph of an Aboriginal artifact dipped in urine instead of a crucifix?  What would be his case for saying he acted reasonably in exhibiting the work?  Wouldn’t that require a judgment as to the inherent worth of the work as a precursor to judging whether it is reasonable to put it on display? Is the magnitude of the offence likely to be caused something to be taken into account in determining the reasonableness of the expression?  If so, how is that reliably to be judged before the performance?

None of this is to say that Andrew Bolt is to be excused for some sloppy journalism.  It is apparent that he failed to check facts.  In the course of things, he defamed some people.  Indeed, it is plain that the real complaint of most of the applicants is that they were defamed.  There was a perfectly good remedy at law without the necessity for this rather scary statutory remedy.

Posted by Nick at 3:27 pm | Comments (10) |


  1. Mark’s position doesn’t make much sense. Speech is not free if it has to be subservient to some sort of “truth”. “What is truth?” as Pilate asked. There are very few things that one can say are definitely true or false, and for those things it makes little sense to stop people from saying the opposite.

    If someone wants to say that the earth is flat, they have a right to say it, and they look pretty stupid if they do.

    But there are a whole lot of things that are true with less certainty, or to a lesser degree, or depending on context can be true or false. Bahnisch’s approach would stigmatise errors in areas where it is virtually impossible to be error free.

    It’s just soft “t” totalitarian gobbledygook which allows a dominant group to curtail free speech on the basis that it doesn’t conform to their idea of truth. It is a dangerous and undemocratic idea.

    We should only limit speech, or expression, on the basis of whether it does damage of some sort, which is where all the legal exceptions you cite come in.

    Offending someone should never be regarded as a reason for curtailing free speech.

    What I’m wondering in this case is why the plaintiff used this act rather than the defamation laws. Is it because the case would have been harder to make out there? Or is it some genuine feeling that they were acting on behalf of a class of persons?

    I’m also wondering how it can be racial discrimination to say someone is white.

    Comment by Graham Young — September 30, 2011 @ 5:15 pm

  2. Graham, my guess is that there are a few reasons why they chose the RDA rather than a defamation action. First, it is an easier test to satisfy. Some of them probably wouldn’t have had a defamation case. Secondly, defamation can’t really be run as a class action, because each case is too specific. Thirdly, success on a racial vilification case was a sexier news story.

    I don’t mean by that last comment to suggest that their complaints weren’t genuine. Some of Bolt’s comments were obviously and gratuitously insulting. I just don’t think there should be legal remedy.

    Comment by Nick Ferrett — September 30, 2011 @ 5:27 pm

  3. Different aspects of the matter are (typically) very well analysed at skepticlawyer:

    Comment by Nick Ferrett — September 30, 2011 @ 6:04 pm

  4. Skeptic lawyer is rather alarmed also.Who is to decide what is offensive and what is the truth?

    I see this as a move towards censorship.In this era of the Patriot Act and Howard bringing back sedition laws, we need a more open society and people to be able to express their views even if it does offend.

    Let the free market of logic and common sense decide what is right or wrong because Govts not only constantly stuff things up but have a habit of going against the will of the people.

    Comment by Ross — October 1, 2011 @ 11:03 am

  5. Graham,

    “[f]ree speech ought to be both in service to the truth, and oriented to its discovery”.

    Who judges whether or not what an individual writes or says satisfies these criteria–self appointed guardians of ‘social cohesion’ apparently.

    I agree, why not use the usual legal remedies?

    Comment by Russell W — October 2, 2011 @ 5:07 pm

  6. Russell, that is the really scary part of the argument in favour of the RDA, the idea that truth is some absolute able objectively to be judged as a precursor to judging whether a particular piece of speech or expression should be allowed. What constitutes truth is, of course, a movable feast. One of the main weapons in the armoury of the bush lawyer, for example, is the proposition that is technically or semantically true but divorced from reality. What is true on one level can be completely false on another.

    My suspicion is that the idea of requiring free speech to be “in service to the truth” is really about speech being subordinate to a particular philosophy.

    Comment by Nick Ferrett — October 3, 2011 @ 9:00 am

  7. your post makes some important points. and wouldn’t the issue of ‘truth’ be fairly subjective for Mark B etcetera?

    Comment by Jennifer — October 3, 2011 @ 10:14 am

  8. Jennifer, I think “truth” is subjective for everyone.

    Comment by Nick — October 3, 2011 @ 10:58 am

  9. I do not know what is subjective about the birth of Lahrissa Behrendt. The distinction between subjective and objective judgements is useless, if that is not on objective matter. Andrew Bolt is guilty of extraordinarily shoddy journalism, such as would get a more junior journalist sacked.

    Comment by Dick Martin — October 3, 2011 @ 3:38 pm

  10. Dick, I agree that Bolt’s journalism leaves more than a little to be desired. I also agree that some things are obviously and undeniably true. I don’t think that that is always the case. For example, to say that Larrisa Behrendt is white is true in the sense that she is fair-skinned, but if that statement is made in the course of delineating who reasonably identifies as aboriginal and who does not, it may be regarded as untrue because some of her forebears are aboriginal. The truth of the statement depends upon the context in which it is uttered and the imprecision which that implies makes me nervous about using the truth as a control on whether something should be permitted to be said.

    Comment by Nick Ferrett — October 3, 2011 @ 4:40 pm

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