Joint post by Dave Gaukroger and Jeremy Sear.

Regular readers of Pure Poison are no doubt aware of the fact that Andrew Bolt is currently before the Federal Court in Melbourne as part of a civil case bought by a group of Aborigines who claim that he has contravened the Racial Discrimination Act. The claim is a response to articles and blog posts that Bolt published where he questioned the individuals’ Aboriginality based on their light-coloured skin.

On Monday, the QC acting for the nine applicants made some fairly blunt allusions comparing Bolt’s writing with a “eugenics approach” and referencing the Holocaust, which Bolt has today refuted, saying that linking him to the Holocaust is “grossly offensive”. We’d have to say we agree with him on this occasion. Claiming that he’s some kind of Nazi is offensive, just as it was offensive when Andrew Bolt compared a local council with Nazis.

But the point of this post isn’t to engage in a game of gotcha – instead, we’d like to look at the fundamental issues that this case raises about free speech.

Now we think that a lot of what Andrew Bolt writes is disingenuous, foolish, poorly-researched nonsense. We think that his blog appeals to the ignorant, the bigoted, the hateful and the frightened. We think that his writing adds nothing to the quality of debate in the Australian public sphere and in many cases causes confusion due to the volume of misinformed tosh that he produces. But despite all of this, we don’t think that a court of law is the place to try to censure him for his political views. Even the most rancid of Bolt’s articles, the ones containing barely concealed dog whistles for the benefit of his more bigoted readers, aren’t calls for any kind of ethnic cleansing or genocide and trying to inflate them to this level doesn’t actually help reduce genuine hate speech.

Free speech and a free press are cornerstones of a modern liberal democracy, and no doubt Bolt’s defence team will be making a point of this. We do not think that the court system should be used to silence someone in the media simply because they are publishing profoundly stupid things, even when they do so on a regular basis, and even when we think that their published opinion is offensive. Almost by definition, if you’re not hearing someone saying things that you find truly offensive, then you probably don’t have freedom of speech.

None of which is to say that we think if individuals are actually personally defamed by a writer in a newspaper that they should simply accept such abuse.

In their submissions the plaintiffs said Bolt said their Aboriginality was not genuine.

“The articles direct criticism to those named, implying that their choice for identifying as Aboriginal was opportunistic and for the purpose of providing them with financial and other benefits reserved for genuine Aboriginal persons who are darker, rather than fairer, skinned Aboriginal persons,”

If you accept the plaintiffs’ argument, then they’re arguably being accused of dishonesty or even fraud, and there’s potentially a remedy in defamation law for that. At that point it’s not an issue of free speech – it’s correcting the record so that a falsehood isn’t perpetuated.

Of course, there’s a place for the courts to restrain dangerous speech – speech that seriously incites violence against a group. And there’s a place for the courts to restrain speech that directly flouts necessary court orders and contradicts the interests of justice – we disagree with Bernard Keane’s attempt yesterday to put Andrew Bolt and Derryn Hinch in the same category.

But the court system should not be an arbiter of tastelessness or offensiveness. It is not what it was designed to do, and placing it in that position is actually counterproductive.

The ill-informed, wrong-headed drivel that is served up by commentators like Bolt is part of the cost of freedom of speech, and it is a cost that we believe is worth paying. To paraphrase the apocryphal quote so often attributed to Voltaire: we may not agree with what you say, but we’ll defend to the death the right of people to call it small-minded, hollow, illogical, erroneous, spiteful rot.

*As this case remains before a court, we won’t be allowing comments on this post.

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