And then it turns out the the Bolt case is not, after all, the perfect opportunity to argue bravely for freedom of expression.
Because Eatock v Bolt turns out to be very much like a defamation trial. One of the two things that the Bolt case makes clearest is that if you’re defamed in an issue about race, and you care about redress rather than money (refreshing!), then the Racial Discrimination Act is the best place to go. Someone else pays the costs and the burden of proof is much lower.
That we have essentially a special duty not to racially defame in Australia is a peculiar result of the Act that I had not realised until now. If like me you don’t much like affirmative action, this is not a good result for the country, regardless of what you think about defamation law. But it’s not as bad as result as it might have been if the case had been decided on other grounds.
OK, step back. As Jonathan Holmes has eloquently pointed out, section 18C is awful legislation. It was inserted into the Act in 1995 by the Keating government with the rest of Part IIA of the Act. Part IIA is headed “Prohibition of offensive behaviour based on racial hatred”, but section 18C it doesn’t fight racial hatred at all. Instead it outlaws certain types of speech and writing so long as they are reasonably likely to offend some people, and as long as the utterances in question are said or written because of those people’s race. This is bad and stupid in its own right, because almost anything you might say or write about race is reasonably likely to offend someone. The Act is also apt to make a lot of people feel that their views are being censored. The likely end result is racial disharmony, the opposite of the result this lousy law was supposed to have.
It’s an awful law, but it’s a simple one. Someone in a racial group felt offended. Bolt was referring to their race. It didn’t matter whether Andrew Bolt was the lovechild of Mark Twain and Mother Teresa; on the face of it, he’d breached the Act. (Bromberg J’s judgment takes a long time to get to this point.)
The legal question then was whether Bolt could use one of the Act’s exemptions. The Act exempts speech and writing in various circumstances where it’s “said or done reasonably and in good faith”, fairly and in the public interest. You might think this would cover most of what a newspaper columnist would write. This is where I was all set to write about Bolt being punished for his opinions.
And this is where we get to the second thing that the case makes clear. If Bromberg J’s summary is anything like correct, Bolt really can be monumentally sloppy with the facts. I was all set to excoriate Bromberg for interpreting the exemption too narrowly, and punishing Bolt for his expression of opinion. But it turns out the case is not about Bolt’s opinion. The judgment says (from point 378, if you’re reading it) that Bolt’s work on the facts was so bad that it didn’t get close to meeting the standard for the exemption. Bolt said a bunch of things about the plaintiffs’ backgrounds which were wrong. He didn’t do basic checks of publicly-available information that he could have found with a minute’s Googling. Bromberg J says that he did not have to make too difficult decisions on the balance between free speech and the Act’s aims, and if his facts about Bolt are right, I can see the judge’s point.
Julian Disney from the Press Council responded to the verdict by suggesting that it showed opinion articles have to be fair and balanced. The essence of opinion writing is that it is unfair and unbalanced, so I am glad that Disney – whom I generally admire – is wrong here. Rather, the verdict seems to show that if you write about racial issues and get a lot of facts badly wrong in a way that offfends people, you may be able to get your case heard as racial discrimination, instead of going to what I suspect is the extra expense of a defamation trial. Oh, and you probably have a better chance of winning.
The judgment itself notes the close parallel with a defamation case:
The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law.
As I said, the idea of a special ethnic defamation code is hopelessly unsatisfactory, even if you think defamation itself is a good legal principle. Other people have made worse misrepresentations than Andrew Bolt and got away with it because section 18C of the Racial Discrimination Act didn’t cover their statements. And section 18C is an outrage anyway, outlawing statements on the basis of the “offence” they might create. It really should be repealed.
But if people start telling you Bolt was punished for his opinions, be just a little sceptical. He was punished for much the same reason as anyone on the losing end of a defamation case.
Update: I have removed a line from this article stating that “Bolt should never have had to face a court examination”. If you believe defamation law is good law (I’m ambivalent) then it’s arguable that Bolt deserved to be in court.
Update 2: Predictably, the idea that Bolt was found guilty because he got his facts wrong is now being ignored by Bolt sympathisers and opponents alike, and not just at News Ltd. Listen to Neil Mitchell interview Geoff Clark here. Note how Geoff Clark unfairly represents the judgment as declaring Bolt a racist. (Note also how Mitchell’s intelligence and civility contrasts with that of one or two Sydney commercial talkback hosts. Some Melburnians don’t understand how lucky they are.)