Bolta, racism and free speech

By Legal Eagle

Hello all, I’m still not back at work yet, but I am slowly getting better from pneumonia. I should be back at work next week.

A while back I mentioned that certain indigenous plaintiffs were bringing legal action against Herald Sun columnist Andrew Bolt. Maybe I’m odd; I don’t have the visceral hatred of Bolt that many among my acquaintance do. I don’t know if my teenage years in the UK with resultant exposure to the Red Tops have inured me to sensationalist journalism? That being said, I’m not in the least a fan of Bolt either, and I very rarely read his columns. Every now and again, though, perhaps on the occasion of a blue moon, I find that I agree with him on something.

To recap, Bolt wrote a series of articles and blog posts which were critical of prominent Aboriginal people who have pale skin, or blue eyes, or blonde hair, and who had received various grants or enjoyed advantages as a result of their Aboriginal identification. I want to reiterate what I said in my original post: when you have parents who are “mixed race”, it is entirely possible that a child may take after their European grandparents rather than their indigenous grandparents. Or vice versa. That’s the joy of genetics. But it does make a mockery of judging people by which grandparent they favour.

I also think that questions of identity are interesting. Again, as I said in my original post, I first became aware of these debates in Judaism, and had the realisation that to be part of particular religious/ethnic community, there must usually be both an element of self-identification and an element of broader community acceptance.

It seems that Bolt is criticising the plaintiffs for identifying as Aboriginal because they get advantages thereby, leaving less money for the more ertsatz and needy indigenous people. Now, I don’t think you can blame the plaintiffs for responding to the incentives that society has set up. Would any rational person do otherwise? In the past, the incentives were such that it was highly disadvantageous to identify as Aboriginal, so that people would be ashamed of their aboriginality and attempt to hide it. Now, since the 1970s, there are various policies which seek to reverse that disadvantage and give indigenous people the same chances as non-indigenous people. It is now arguably advantageous to identify as Aboriginal: you can get scholarships, grants, health care benefits, and other welfare benefits which are greater than those available to non-indigenous people. That being said, sadly most indigenous people are still in a situation of disadvantage, with much lower life expectancies than non-indigenous Australians. There is also massive societal breakdown in some communities, with problems with alcohol, drugs, violence and abuse at a much higher level than average.

One of the difficulties, I suppose, is that a lot of racial discrimination is based on superficial appearance. (When you put it like that, it sounds so stupid and banal, doesn’t it? Yet it has had such a poisonous influence on many societies.) Let’s say there are fraternal twins of mixed race heritage, one of whom “looks Aboriginal” and one of whom “doesn’t look Aboriginal”. Has the non-Aboriginal-looking brother suffered the same amount of discrimination as the brother who looks Aboriginal? If discrimination is based purely on outward appearance, there may be a genuine question there. But how do you measure such things? It is also worth noting the family background of the siblings may, of course, be equally disadvantaged. Should one sibling get less help because through genetic chance, he “looks less Aboriginal”? That seems kind of arbitrary, and you might get back into a position where people’s worth is measured on colour. I remember a horrible diagram from my undergraduate degree which showed photographs of “quadroons” and “octoroons”, with each successive generation looking “less Aboriginal” – the purpose of the diagram was to illustrate that indigeniety could be “bred out”.

I am presuming the cause of action against Bolt is based on s 18C(1) of the Racial Discrimination Act 1975 (Cth), which provides as follows:

(1)  It is unlawful for a person to do an act, otherwise than in private, if:

(a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Thus, the plaintiffs would be arguing that Bolt’s articles were likely to offend, insult, humiliate or intimidate them and that they were written because of the race, colour or ethnic origin of the plaintiffs.

From my personal point of view, I think the provision itself is problematic, because conduct can be illegal merely because it is offensive, insulting or humiliating. I have difficulties attempts to regulating offense. For one thing, I think that my guiding light determining the reach of the law is John Stuart Mill’s “Harm Principle”: the law can intervene to restrain the actions of an individual if those actions are harmful, but not if they are merely offensive, because the freedom of speech militates that people should be able to express an opinion even if it is offensive. The other thing is that offense is a very subjective concept. So someone may fall foul of this law because they offended another, but they had no intention to do so.

I find the way in which Bolt writes his columns irritatingly provocative and somewhat offensive, but I think he raises questions which deserve serious and respectful scrutiny. How do we best help indigenous people in this country? Does superficial appearance matter? How do we measure disadvantage? In this regard, I refer to a post by fellow lawyer Darren Ferrari:

Now, I am no fan of Bolt. I avoid his articles whenever I can (which is pretty much all of the time). However, I do believe in a broad notion of a right to freedom of expression and as much as I dislike Bolt and most of his views, I feel obliged to support his right to express those views.

As a consequence, I find it hard to support laws that seek to restrain speech. I am not a fan of religious and racial vilification laws, for example, because they are prone to misunderstanding by those who would be subject to them (thereby acting as a deterrent to legitimate speech) and misunderstanding or mischievous misuse by those who seek to use them. In short, they produce too many side-effects to justify their use against their targeted behaviour.

As much as I abhor Bolt’s comments that precipitated this proceeding, I think that the proceeding itself has the potential…to stifle legitimate debate over issues of race and identity.

That pretty much summarises my own position exactly. Darren goes on to deal with the issue of the rhetoric used by counsel for the plaintiffs, Ron Merkel QC. The Australian reports Merkel’s opening comments thusly:

Andrew Bolt’s writings on Aboriginal identity were akin to an “eugenics approach” that ultimately led to the establishment of the anti-Semitic Nuremburg Laws of 1935, the Federal Court has heard.

“The Holocaust started with words and ended with violence,” Ron Merkel QC told judge Mordecai Bromberg as he outlined in Melbourne the columnist’s alleged breach of the Racial Discrimination Act.

Four articles by the Herald Sun columnist were “a head-on assault on a group of highly successful and high-achieving” Aborigines, said Mr Merkel, representing nine applicants in a class-action against Bolt and the Herald and Weekly Times.

Like Darren, I consider that Merkel’s comments were “over-egging” the pudding somewhat, but he is within his rights to do so (call it “barristerial license”, if you like). Yes, as I pointed out above, if you take Bolt’s ideas to a logical conclusion you might be looking at people to see how dark skinned they are to determine their entitlement to welfare, but I don’t think Bolt was suggesting that. I think he was querying whether the current schemes are successful in getting money and aid to the most needy indigenous people. As I said above, I don’t think you can blame the plaintiffs themselves for responding to rational incentives, and I feel that Bolt unfairly targeted them in that regard, but it is legitimate to ask how indigeneity is defined and whether the present means of aiding indigenous people are really working.

Darren has some interesting observations on the Crikey commentaries on the case: go read his post.

He concludes with the following observation:

It will be interesting to see how this case pans out. Its outcome will hold significant implications. If the plaintiffs win, Bolt will have been made a martyr and speech will have been stifled. If Bolt wins the plaintiffs will have set back the cause of understanding. Ultimately, I can’t see a way for the plaintiffs to win.

It is a bad case brought under a bad law with only bad outcomes foreseeable. That’s the pity of it all.

I concur. I think that if I had been targeted by Bolt, my response would have been to (a) ignore him or (b) engage with the issue, acknowledge that there are issues with respect to aboriginal identity, and rebut his piece with arguments. My preference would be (b), as you might guess from what you know of me. By contrast, suing gets you nowhere, and I think it’s a lose-lose case.

Update:

In comments to Andrew Landeryou’s post at VexNews, David Barrow has given a running update of the case.

8 Comments

  1. kvd
    Posted April 13, 2011 at 3:38 pm | Permalink

    Fail. Masterclass, not.

  2. Henry2
    Posted April 14, 2011 at 8:18 am | Permalink

    http://www.theaustralian.com.au/national-affairs/more-offensive-than-sex-with-a-horse-larissa-behrendts-twitter-slur-against-black-leader/comments-fn59niix-1226038768051

  3. Posted April 14, 2011 at 1:35 pm | Permalink

    I’m sure there are political comments that I can imagine that I might find more offensive than watching bestiality. However I wouldn’t exactly make use of such a point in any argument, its quite the bizarre non-sequitur. Then again twitter isn’t exactly renowned for its rational debate.

    I do find it interesting that our ‘national paper’ decided that a twitter flame was worthy of a published news report. I wonder if they’d be so generous in their coverage if it was between two white people…

  4. Posted April 22, 2011 at 7:01 pm | Permalink

    I have just deleted a comment from the moderation queue that, once again, managed to mistake Legal Eagle and me for each other.

    I am going to make it official blog policy that anyone who can’t tell the difference between the four of us (despite the fact that we all have very different gravatars) is going straight in the trash can. Before going off half-cocked, hit the ‘About’ tab and thereby learn who the different writers are. There are only four of us; do keep up.

  5. Posted May 6, 2011 at 3:57 pm | Permalink

    [email protected] Quite right too.

    [email protected] I am not much into denying people pulpits. Argue the case, don’t ban the participants.

    A useful coverage of the Bolt trial is here.

  6. Posted September 27, 2011 at 8:40 am | Permalink

    Bolt Case Decision: Wed 28 Sep 2011, 10.15am AEST

    VID770/2010 Pat Eatock v Andrew Bolt & HWT

    Justice Bromberg will be delivering the judgment on Thu 28 Sep 2011 at 10.15am Court One (Level 8), Federal Court in Melbourne:

    https://www.comcourts.gov.au/file/Federal/P/VID770/2010/actions

    — simple bound copies of Australian Court Rules and Legislation:

    http://www.courtrules.net.au/

    David C. Barrow
    Juris Doctor law student, RMIT Uni

3 Trackbacks

  1. By Skepticlawyer » Tribes and Tribulations on April 25, 2011 at 12:29 pm

    […] in a claim under the Racial Discrimination Act against newspaper columnist Andrew Bolt. As I’ve detailed here, the essence of her complaint was that Bolt’s columns had been calculated to offend, insult, […]

  2. […] in favour of the plaintiffs in Eatock v Bolt [2011] FCA 1103 this morning. You may recall that I wrote a post while the case was being heard. Bromberg J found that Bolt’s newspaper article contravened s […]

  3. […] Aboriginal people are said to be discriminated against is on the basis of skin colour. As I said in another post on the Bolt case: One of the difficulties, I suppose, is that a lot of racial discrimination is based on superficial […]

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