Andrew Bolt has been held liable of violating the Racial Discrimination Act for writing two columns intended to offend and humiliate several people because they were Aboriginal. Bolt lost because his writing was not done reasonably and in good faith, which we know is characteristic of his work in other areas as well.
The judgement makes interesting reading.
The judge found that Bolt's evidence was not to be trusted:
I am firmly of the view that a safer and more reliable source for discerning Mr Bolt's true motivation is to be found in the contents of the Newspaper Articles themselves rather than in the evidence that Mr Bolt gave, including the denials made by him as to his motivation.
Bolt's comments were "exaggerated" and "unsupported by any factual basis":
In the first article (1A-21), Mr Bolt wrote that Ms Heiss had won "plum jobs reserved for Aborigines" at each of three named institutions or enterprises. Each of those assertions was erroneous. Mr Bolt accepted that they were wrong because they were exaggerated. One of the positions that Mr Bolt claimed Ms Heiss had won as a "plum job" was a voluntary unpaid position. The other two positions were not reserved for Aboriginal people but were positions for which Aboriginal people were encouraged to apply.
Mr Bolt wrote that Ms Eatock "thrived as an Aboriginal bureaucrat, activist and academic" (1A-28). The comment is unsupported by any factual basis and is erroneous. Ms Eatock has had only six to six and a half years of employment since 1977. In the case of Ms Eatock, Mr Bolt also suggested in the first article that she identified as an Aboriginal for political motives after attending a political rally (1A-27). That statement is untrue. Ms Eatock recognised herself to be an Aboriginal person from when she was eight years old whilst still at school and did not do so for political reasons.
The judgement details Bolt's deliberately misleading cherry picking and finds his excuse of "a lack of space" to be disingenous:
There is other evidence which also suggests to me that Mr Bolt was not particularly interested in including reference to the Aboriginal cultural upbringing of the individuals he wrote about.
Mr Bolt wrote that Ms Cole was raised by her "English-Jewish" or "English" mother (1A-2; 2A-24). That statement is factually inaccurate because Ms Cole's Aboriginal grandmother also raised Ms Cole and was highly influential in Ms Cole's identification as an Aboriginal. He wrote that Ms Cole "rarely saw her part-Aboriginal father" (1A-3). That statement is factually incorrect. Ms Cole's father was Aboriginal and had been a part of her life until she was six years old. Ms Cole later lived with her father for a year whilst growing up.
Mr Bolt's documentary source for the statements he made in the articles about how Ms Cole was raised, expressly referred to the involvement of Ms Cole's Aboriginal grandmother in Ms Cole's upbringing. It quoted Ms Cole attributing to her grandmother the fact that she felt "staunchly proud and strong" about being an Aboriginal person. Mr Bolt disingenuously explained the omission as due to a lack of space.
He also relied on that reason for the lack of cultural reference given in relation to Prof Behrendt. The factual assertions made that Prof Behrendt was "raised by her white mother" (2A-20) were also erroneous. Prof Behrendt's Aboriginal father did not separate from her mother until Prof Behrendt was about 15 years old. Her father was always part of her family during her upbringing, even after that separation.
In my view, Mr Bolt was intent on arguing a case. He sought to do so persuasively. It would have been highly inconvenient to the case for which Mr Bolt was arguing for him to have set out facts demonstrating that the individuals whom he wrote about had been raised with an Aboriginal identity and enculturated as Aboriginal people. Those facts would have substantially undermined both the assertion that the individuals had made a choice to identify as Aboriginal and that they were not sufficiently Aboriginal to be genuinely so identifying. The way in which the Newspaper Articles emphasised the non-Aboriginal ancestry of each person serves to confirm my view. That view is further confirmed by factual errors made which served to belittle the Aboriginal connection of a number of the individuals dealt with, in circumstances where Mr Bolt failed to provide a satisfactory explanation for the error in question.
Mr Bolt said of Wayne and Graham Atkinson that they were "Aboriginal because their Indian great-grandfather married a part-Aboriginal woman" (1A-33). In the second article Mr Bolt wrote of Graham Atkinson that "his right to call himself Aboriginal rests on little more than the fact that his Indian great-grandfather married a part-Aboriginal woman" (A2-28). The facts given by Mr Bolt and the comment made upon them are grossly incorrect. The Atkinsons' parents are both Aboriginal as are all four of their grandparents and all of their great grandparents other than one who is the Indian great grandfather that Mr Bolt referred to in the article. Mr Bolt did not seek to deny the evidence of Aboriginal ancestry given by the Atkinsons but insisted that their ancestry was accurately conveyed by the statements made and extracted above.
Bolt is, of course, complaining loudly and at length on the front pages of newspapers, on TV, and on radio that he is being silenced by the Racial Discrimination Act. But malicious lies about people violate laws against defamation, so he would likely have lost a defamation case as well. This does suggest that the provision of the Racial Discrimination Act in question is perhaps unnecessary.
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The word "despicable" pops to mind....
So when is he going to get the sack?
Sadly, his readers will applaud his 'stand'. Just as with affirmative action legislation in the US and Northern Ireland, anti-discrimination laws are viewed as discriminating against the previously comfortably off sectors of society when the hard times roll around again, as they inevitably do.
Such constituencies have no senses of shame, irony or historical perspective and are entirely self-absorbed and offendable making them easy pickings for right-wing hacks.
Quick legal correction (don't worry, lots of people do it, including Bolt's own paper!), but he was 'held liable' not 'found guilty'. The latter phrase is typically used for criminal matters.
*[OK, I changed it. Tim]*
He made stuff up for his column. Well golly. Whoever would've thought? :)
This is a general problem about these "special circumstance" laws, such as those for terrorism. They are unnecessary because the crimes are already covered by laws of assault, treason, property damage, murder, and so forth. Likewise hate crimes are unnecessary (although media regulation laws would not be unnecessary, yet oddly the players don't seek these).
Andrew Dolt [sic] has a history of lies and deceit to further his political ideology. But his actions can be tested in existing law. Hate crimes are not a special case of crimes, just ordinary crimes.
Johnathon Holmes has an interesting article on the case which discusses why the case succeeded under the racial discrimination act, but would not have succeeded as a defamation action. He writes:
"But â and this is the disturbing part â the judge goes on to find (in par 424):
"Even if I had been satisfied that the section 18C conduct was capable of being fair comment, I would not have been satisfied that it was said or done by Mr Bolt reasonably and in good faith."
Defamation law doesn't require fair comment to be reasonable, as we've seen. It doesn't require it to be 'in good faith'. But the exemptions listed in section 18D of the Racial Discrimination Act, including fair comment, only apply to "anything said or done reasonably and in good faith".
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 â 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.""
http://www.abc.net.au/news/2011-09-29/holmes-bolt-bromberg-and-a-profou…
I firmly disagree with Holmes' concerns on this issue. He seems to think that free speech is a fundamental right, but in fact it is an instrumental right. We desire free speech because society prospers from it, and because no true democracy is possible without it. It follows that no restriction on speech which is not inimical to these purposes should be automatically ruled out (although they should not exist without significant justification). In fact, the "right" to deliberately distort facts, to write in a hectoring and abusive tone and to deliberately offend are not necessary for the good functioning of democracy and the spread of ideas. Rather, they are inimical to it. Therefore any law that has the effect of preventing deliberate distortion and offensive tone for another reason does not impinge upon the right of free speech, properly construed.
Holmes' defense of a broader definition of free speech is particularly weak on this point. He writes,
"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'.
If you did all that, of course, you'd be unlikely to offend anyone in the first place. So there doesn't seem much point in section 18D. And you'd also struggle to express your view in a way that would attract readers in a popular newspaper."
Well, the right of people to make money by abusive disinformation is of even less concern for those interested in ensuring the propagation of ideas, and the health of democracy. Commercial publication of inflammatory disinformation as a means to make a profit is probably the second greatest threat to the health of democracy, and given global warming, the health of the world, current today. The only thing more inimical to it, IMO, is allowing non citizens (including corporations and NGOs) to donate to political campaigns.
The substitution of commercial values for journalistic values implicit in Holmes' defense is a canker on society, and if the racial discrimination act restricts that substitution, then we need more of it, not less.
Is that disingenuous, or perhaps they meant 'diss-indigenous'?)
"This is a general problem about these "special circumstance" laws..."
Actually John, it's why they're necessary. As many civil rights organisations around the world have found, legally proving discrimination is exceptionally difficult. Just as a boss who wants you gone will always find a way regardless of how blameless your own behaviour appears to be, human judgement cannot be legislated for.
What can be legislated for, and cannot be argued against, are population statistics and enforcement of equality based on that metric. Hence the various international affirmative action laws.
In the case of Northern Ireland, the transparently non-sectarian police service (PSNI) is now [accepted by almost all of the the population - 80%+](http://www.irishtimes.com/newspaper/breaking/2006/0221/breaking72.html) whereas previously the Crown affiliated Royal Ulster Constabulary (and particulatly their overwhelmingly sectarian 'Special' Constables - google-able as 'B Specials') were shunned by the then 46% of the population.
Do affirmative action systems favour the best candidates for particular appointments? It's relatively easy to show that may not always be the case, but hey! Feel free to design a better, more widely accepted system of fairness.
John, hate crimes are a special case of crimes. That is because their victims are a fraction, usually a small fraction of the whole society. Therefore, unlike ordinary crimes to which all can fall victim, the hurt in the form of fear, abuse, and assaults fall disproportionately on just one, usually already marginalized group.
> That is because their victims are a fraction, usually a small fraction of the whole society.
Indeed - and also because hate crimes victimise not just the individuals targeted by the specific acts, but an entire minority group by "sending a message" and inciting/creating a climate of fear and intimidation.
Time to move on to the defamation case. That is the only way to change people like Bolt
So the serial misrepresenter misrepresents even his own story.I liked Mike Carlton's take: the "Lying Dutchman",backed by News Ltds conga-line of right wing goons,just doesn't get it.
Donât forget that hate-crime laws exist in order to provide those who are wronged with equal opportunity to be represented. Yes, defamation law exists and could have been applied in this case, but the problem with defamation law is that it costs money, bucket loads of money, for victims to sue.
In this case it would be the small against the mighty, people with little money against the very expensive News Ltd. legal team. This is a significant barrier for the powerless to defend themselves against the sort of bigotry on display by the like of Bolt.
Not to mention that with defamation, unlike hate crime laws, the rich can simply buy the silence of the victims for relatively minor sums of money and hide behind non-disclosure contracts. A very public shaming of these people would have been covered up by a very quiet and secret payment if the victims had gone down the defamation route.
Thing is, Gus, he got done for defamation with Jelena Popovic previously (in 2002, from memory) and it hasn't changed his approach as far as I can see.
Ben, I think it's a generalisation to say this was the "small against the mighty". Clearly some of the plaintiffs were not powerful people. However, I don't think Larissa Behrendt, for example, is powerless - she's a Harvard educated lawyer and a law professor, and one of the other plaintiffs, Mark McMillan, is also a US-educated lawyer. Behrendt's partner is the former Federal Solicitor-General, so obviously he would have contacts and legal resources too. I wouldn't say that Geoff Clark was without power either. At one time, he wielded a good deal of power. So there was a mix of people represented in the group of plaintiffs.
There are clear costs reasons why the plaintiffs went down the RDA route rather than the defamation route (they could easily sue via a representative plaintiff, Pat Eatock - none of the other parties were actually named plaintiffs, although I've called them that for convenience). Still, I don't think it's necessarily the case that a defamation claim would have settled - look at the Popovic case involving Bolt previously, or any other of a number of prominent defamation cases.
Bolt slandered people, on a matter of race. It's not that hard to understand. It's not about freedom of speech, you can't libel people, and not, as in this case, in a racial context.
Tom Curtis, you need to read Holmes' column again. He doesn't say that a defamation action wouldn't succeed. In fact, he says the opposite. "It seems to me that most of them could easily argue that they had been defamed. And it seems to me that if Bolt had pleaded the defences of truth and fair comment, he might not have succeeded, because his research was so sloppy."
The rest of the article is a counterfactual, "suppose for a moment that he had been far more diligent than he seems to have been". *Then* Bolt could have successfully defended himself against charges of defamation. But he still could have been liable under this ruling. That's what's so appalling about the judgement.
Causing offense, deliberately or not, is often necessary in effective speech. It should certainly not be a crime.
And, by the way, many of us do feel that freedom of speech is a fundamental right. In fact, I'm always shocked when I find an educated person who says otherwise.
Ken Hirsch, you are correct that Holmes says that a defamation action "might" have succeeded. That means the counterfactuals begin early.
As to free speech, in the words of Jeremy Bentham,"That which has no existence cannot be destroyed â that which cannot be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense â nonsense upon stilts."
The fact that people can cause harm to others by means of speech means that it is legitimate to legislate to restrict speech to restrict those harms. In doing so it is necessary to give proper weight to the necessity of freedom in speech for the health of democracy, for the advancement of knowledge and for the development of culture. But deceptive and abusive speech is inimical to all three, so there can be no natural right to deceptive or inimical speech.
What is more, given that restriction, the racial discrimination act was well framed, and the judgement wise for it draws the line on free speech exactly where it should be drawn. It in no way presents a restriction on the propagation of sincerely held opinions, including the opinions that people with majority European descent should not be considered Aboriginal in either law nor culture; and the opinion that people of majority European descent taking employment opportunities reserved for Aboriginals is harmful to the prospects of people with majority Aboriginal descent; or indeed that the category "Aboriginal" is harmful to society and that distinctions on the base of race have no place in law or culture. You just cannot argue for those opinions using deceptive or false claims of fact, and nor can you do so in a way that is deliberately abusive or designed to offend.
If you want to defend a right of free speech more narrowly defined than that, you are not defending the free propagation of opinion, which exists under the current law - but the free dissemination of falsehoods and the right to abuse minorities. If you think there is some god give right to lie and abuse, your education is sadly lacking.
Reading this post was just like reading a disection of a typical climate "skeptic" article.
People like Bolt seek to deceive, because the truth is not their friend.
Given the "Juliar" rubbish spouted by the right, would it be ok to hereafter refer to "that liar Bolt"?
As a civil libertarian, I'm quite disappointed to see that Australia enforces laws against offensive speech. Yes, yes, I agree, the speech in this case was offensive and stupid. Even unreasonable and in bad faith.
But why should any of that be a concern for the courts in an allegedly free nation?
If we jailed every pundit whose speech was offensive, unreasonable, and in bad faith, the radio waves would go quiet and ISPs would not need so many routers.
It's already OK to refer to "the lying Dutchman".
The tension about absolute freedom of speech is that it is not a natural right, you can try it, but you can also get a bat inserted into your head.
A bit OT, but worth mentioning anyway. Michael Mann took his gloves off and tore an obnoxious denier a new one (or three) in this delicious piece that he just penned: http://www.vaildaily.com/article/20111001/EDITS/110939988/1021&ParentPr…
Methinks that Dr. Mann's flame-thrower goes to 11. ;)
Definitely do follow the link and click on the "recommend" button at the top of the page. Also, consider tweeting, facebooking, etc. his column to make sure that lots of people see it.
Russell,
You may well be a libertarian, but seeing that you write in defense of offensive speech, your claim to being civil is dubious.
As it happens, what will happen if you place on people an onus that there speech be true, fair, and non offensive is not an absence of speech, but the presence of true, fair and non offensive speech. That would be a boon rather than a curse. The supposition that Bolt would be unable to fairly represent the facts, and unable to cast his opinions in a non-offensive form is tenuous, and if true means Bolt does not have the intelligence to deserve his very large income. Therefore the supposition that this judgement restricts the range of opinions that can be expressed in Australia (as distinct from the ability of pundits to deliberately mislead, or to deliberately use emotive speech to bypass their readers critical faculties) is also baseless.
Russell @20:
You seem to have comprehensively missed the point.
The Lying Dutchman lost a civil case because of his shoddy inaccuracy, not his offensiveness. And he wasn't imprisoned.
You're going to run out of straw if you keep this up.
Russell said:
As "we" have not yet gaoled one, nor even proposed doing so, or even imposing a material sanction your counterfactual is trolling -- trolling on stilts --to borrow Tom's borrowing above. If a serious material sanction by the state is proposed, count me as an ally. Until then, you should stick with observed reality.
FTR, if we did gaol offensive pundits for being offensive in public, there would be hardly any such pundits and debate would probably have a better signal to noise ratio. On general utility grounds, I don't support that approach, but it would have an (expensively obtained) upside.
Here's something to consider though:
You are having a pleasant meal and conversation with several family/friends at a public restaurant. The crowd is in good spirits until someone wanders in off the street and begins becoming abusive, making defamatory suggestions at staff and guests and hurling invective in loud tones.
Putative totalitarians rise from their seats and invite him to decamp on pain of violent and other unseemly consequences.
Do you
a) jump to your feet to defend his right to free speech against the incipient gulag?
b) Cheer those inviting him to make himself scarce at an early moment?
c) Suggest people sue him fo defamation?
To those who feel free speech has been trampled upon, I suggest you read carefully the actual judgement (which is linked to in the post by Deltoid). As numerous people have made very clear (especially Tom Curtis, excellent comments), if what Bolt had written was true then he would not have fallen foul of the Racial Discrimination Act. Truth is a defence under the RDA. For those who transgress from truth to untruth, the RDA may apply if additional conditions are active, namely that race is a factor in the claims under judgement. Read Bolt's headlines and it becomes immediately clear that race is THE FACTOR once truth is dispensed with.
Bolt may appeal, but unless his appeal can overturn the issue of untruth, his appeal will founder at that first hurdle.
Those particular journos whose business is writing offensive, untruthful garbage in no way assist democracy or its longevity; put another way, such journos should be the last to cry "Free Speech", whilst they make a mockery of the claim to it.
...not to mention the poor lamb's woeful, martyred laments plastered across newspapers, radio, his corporate blog etc.. And the verdict being the Chatteratchik's issue du jour.
Yep, the poor love, the Stalinists really have silenced him!
As a lifelong campaigner on various environmental issues, I can assure you the media gatekeepers he works for feel not the slightest obligation to promote free speech in issues of the public interest if it doesn't suit their interests (AKA determining 'news value'). A point Michael Gawenda has also made:
This, however, is the 'natural' preserve of the truly powerful, and thereby not an issue of concern!
If being pro 'free speech' means crediting hysterical, self-pitying blubbing from media elites in circumstances like this then mark me down as an anti...
And it's hard to disagree with Gawenda, Bolt's piece should simply never have been published.
This wasn't a case of someone advocating generalized racialist theories. Making a case for an idea. It was a case of someone making specific and false charges about individuals.
Everything else is just noise and distraction.
There is a more general discussion of our failing/failed media here. Waiting for slap on bum from Jonathan Holmes for daring to be critical of journalists. wp.me/pT9cu-Ec
I completely concur with your sentiment David Horton. I not only "imagine" it, I actively wonder what the blazes is happening in our media that they can't report intelligent government policy intelligently - or that they can't report scientific understanding scientifically.
Where vested interests manufacture dissent, it seems that the mainstream media manufacture public opinion, and that they manufacture it so that it opposes the govenment of the day, all in order that they might create amongst their readerships/audiences a general public dissatisfaction and a consequent public interest in turfing out the incumbents.
Heck, even the ABC is limp in seriously investigating and reporting on the strengths of government policy: if Aunty can't do it, then how on earth are non-analytical lay people supposed to figure out that the policies of the current Federal government are actually generally well thought-through?
Of course, in the climate context, when it's all too late and the shit starts well and truly hitting the fan, there'll be material for years of further shock-horror media hysteria, but even they will (or should...) reach a point where they will wonder if they screwed it all up. I just hope that the transience of audience-capture will have been worth sending the planet to Hell in a handbasket...
For those who didn't follow David Horton's link, I was replying to [this post of his](http://davidhortonsblog.com/2011/10/03/you-may-say-im-a-dreamer/).
Thanks Bernard. The Australian media has become an enormously damaging force. Once it was just the obvious suspects like Bolt, but now tabloidisation has affected every part of the so-called MSM including the ABC which, it becomes clearer by the day, Scott has modelled on Channel 9.
The reasons are very complex, ranging from the financial and media interests of the proprietors down to the sensationalist and trouble-making propensities of individual journalsts. One breakfast show presenter the other day admitted it would be a "great story" if Rudd came back as leader for example. But whereas once a journalist was content to follow a "good story" now they set about making it happen. To hell with the public interest. I will keep following these ideas. I think our democracy is in great trouble when the media no longer reports, provides information, but plays a major role in selecting governments. The Bolts of this world are just the shock troops.
David Horton said:
I'm not sure the metaphor quite works here. Certainly I can see what you mean by the allusion to troops sent in as the initial wave on a well-defended position, Stosstruppen in the German (literally "push troops") but typically these advance battalions were cannon fodder, and were expected to suffer significantly higher casualties than the better trained and equipped regulard divisions. The Russians in WW2 used "penal brigades" for just this reason while other armies would promise to reward survivors with rapid promotion for joining such units.
Blot and Akerman and Jones are not cannon fodder. Nor are they trying to inflitrate behind the main lines. They are footsoldiers in regular boss class battalions aiming to lay siege to reason and evidence and drive it from the field. They bring with them serious heavy weaponry, considerable mobility and tactical air support.
Quite right Fran, I did hesitate. I was thinking if blitzkrieg I guess - Bolt as Stuka pilot. But these days a better analogy might be SAS - sent into Iraq, for example, to destroy key defence structures before the regular troops.
Really David, if we are doing military analogies Blot and his lot are more like sappers, attempting to undermine fortified positions with small bombs and/or by tunnelling.
Regrettably, the defences have already been weakened by the hollowing out of the fortified positions carried on by the defending general staff. The ramparts are staffed by mercenaries (some of whome have good relations with the hinterland of the attacking troops), riff-raff from the village, and Beau Geste like, also with corpses.
> But why should any of that be a concern for the courts in an allegedly free nation?
For the same reason they should be against slavery.
After all, to the slaveowners, that's an abridgment of their free assembly.
Tom Curtis:
Actually, that is precisely what civil libertarians do. Defending non-offensive speech is easy. If you look at the free speech cases defended by the American Civil Liberties Union, you will find not a collection of people who speak only truthfully or gently, but a list of preachers, zealots, Nazis, and bigots, typically spreading lies and hate.
Donald Oats:
It makes me quite glad for the American 1st amendment, that I don't have to worry about some court determining the truth of what I say, if it happens to touch upon race!
Fran Barlow:
I guess I am confused. I didn't realize that Bolt was charged with trespass, when a restaurant owner asked him to leave the establishment where he was making his speech.
> Actually, that is precisely what civil libertarians do.
Whooosh.
> It makes me quite glad for the American 1st amendment, that I don't have to worry about some court determining the truth of what I say
Yup, liars love that. Especially when they're flim-flamming someone to get their money. All that truth just gets in the way.
> I guess I am confused. I didn't realize that Bolt was charged with trespass
Yes, you are confused.
It's called "An analogy".
And that you couldn't answer it was the precise reason why you manufactured "confusion".
The public newspapers are as public a place as a resturaunt and the reason why the owner should throw the bum out is because the customers will leave.
Or is it you're OK for speech being restricted as long as it's so someone makes more money over it?
Wow:
I agree completely. Any author banned from a newspaper, who breaks into the computers or presses to publish his articles against the owner's wishes, should be charged. With trespass, or similar crime. Of course, what speakers a publisher or restaurant owner allows varies greatly, depending on what kind of venue they are trying to create. If you're dining in a comedy club, you'll likely have poor luck asking the owner to kick out an offensive speaker!
And it failed, conflating the very different issues of a) law that restrains speech because of its offensive content, with b) a speaker using a venue contrary to the owner's desires.
> Any author banned from a newspaper, who breaks into the computers or presses to publish his articles against the owner's wishes
Public newspaper.
Who do you think are the public?
> > It's called "An analogy".
> And it failed,
No, you couldn't answer it. If you have an analogy that is 100% the same, then it isn't an analogy.
Wow:
Publicly-owned newspapers have managers and editorial boards, as do privately-owned ones. The analogy would hold only if Bolt somehow put his article into the paper contrary to its managements' desires.
What's at issue is something very different: law that restricts speech by virtue of its offensive content.
"It makes me quite glad for the American 1st amendment, that I don't have to worry about some court determining the truth of what I say, if it happens to touch upon race!"
Bolt went beyond merely talking about race and brought in individuals. The racial aspect was merely a legally specified subset of libel and slander to make it easier for those harmed to get into court and get redress. The issue is no more about free speech than ordinary libel and slander cases are. Australia chose to change procedural issues. If an American author claimed that Mr. Smith got preference in hiring because he was black and Mr. Smith hadn't gotten preference because he was black, Mr. Smith could sue the author. And win.
> Publicly-owned newspapers have managers and editorial boards
Yep.
> The analogy would hold only if Bolt somehow put his article into the paper contrary to its managements' desires
Nope. It holds because offensive speech IS restricted and that you only hold up the offensive speech as long as it doesn't offend YOU.
> What's at issue is something very different: law that restricts speech by virtue of its offensive content.
Nope. The act enforced a factual error that was an intentional lie.
That the owner is a bigoted hypocrite doesn't make the lie a truth.
Another person who finds it necessary to lie in order to make his case.
Yeah, there are no libel or perjury laws in the U.S., or laws against false advertising, and courts never instruct jurors to weigh the credibility of witnesses.
Ignorant boobs are often shocked by what educated people say.
Russell is right about this and you are wrong:
Nothing there about factual error or lying. That only entered into the case through Bolt's defense that he should be exempted because his writing was fair use conducted in good faith:
s/fair use/fair comment/
In response to my analogy:
Russell said:
In the analogy here, the "restaurant owner" is "News Ltd" who are at best, indifferent if not tacitly supporting the intruder, by paying him to irritate the guests. He is also annoying passersby on the streets. Trespass doesn't arise.
If you are fussed about this however then we could move the venue out into a public picnic area and see if anything important changes in the problem at hand. I don't agree it does.
Free speech doesn't trump other rights that people value. Yes, it is important -- so important in my view that we ought to presume in its favour in all cases where there aren't persuasive reasons in public utility not to. One needs to show that a serious public harm would arise if it were not imposed upon, and then only impose to the extent needed to abate the harm.
This case here would not seem to be an imposition upon free speech since as Blot has demonstrated, he has continued to speak freely, and not merely about the matters at hand, but about the ruling. He has suffered no sanction even for the comments that were the subject of s18C. Thus no injustice or even unwarranted imposition has been done to him.The ruling may have cruelled his attempts to lie in the service of his cause with impunity, and revealed more widely that he is a liar, but that is just. Putting aside other measures introduced by Howard, free speech is quite as abundant as it was in 1995 when this provision was first authored.
Russell@20 said:
"If we jailed every pundit whose speech was offensive, unreasonable, and in bad faith, the radio waves would go quiet and ISPs would not need so many routers."
Erm, what a load of rubbish. Your short sighted analysis suggests that radio developed based on the success of bad language! I seem to remember that Hollywood expanded and flourished based on a lot of very prescriptive rules and regulations. I listen to the radio every day and never hear abusive language from current affairs commentators.
Meanwhile in the nation that claims to have plenty of freedom (but in reality has numerous pedantic laws and regulations) 'shock jocks' lie and abuse, politicians can not work together because of extreme views and every single person overspends because they feel they have the right to. That nation is the United States.
> Russell is right about this and you are wrong:
Really?
> The judgement details Bolt's deliberately misleading cherry picking and finds his excuse of "a lack of space" to be disingenous:
> There is other evidence which also suggests to me that Mr Bolt was not particularly interested in including reference to the Aboriginal cultural upbringing of the individuals he wrote about.
and concluding on the discussion of the case the idea that:
> That view is further confirmed by factual errors made which served to belittle the Aboriginal connection of a number of the individuals dealt with, in circumstances where Mr Bolt failed to provide a satisfactory explanation for the error in question.
FTFA.
Now, where did you get your snippet?
Consider for a moment how things would have played if, instead of focussing on indigenous Australians, Bolt had been saying what he said against people of Jewish decent, and specifically of decent from Holocaust victims.
What if Bolt had said that Ms Heiss had won "plum jobs reserved for Jews" at each of three named institutions or enterprises?
What if Bolt wrote, with his attendant errors and hinted-at bigotry, that Ms Eatock "thrived as a Jewish bureaucrat, activist and academic"?
What if Bolt had said of Wayne and Graham Atkinson that they were "Jewish because their Indian great-grandfather married a decendant of a Jew"? What if Mr Bolt wrote of Graham Atkinson that "his right to call himself Jewish rests on little more than the fact that his Indian great-grandfather married a Jewish-decended woman"?
Would folk be as happy to hear Bolt speak like that, as they are to tolerate his rubbish about aboriginal Australians?
I suspect that many who back him on the original matter might not be quite so quick to support him on the alternative...
> Bolt had been saying what he said against people of Jewish decent
Better: about Christians. Limbaugh et al would go completely librarian-poo in the USA over it.
It would be much more entertaining.
Also much less likely.
In the case of 'Free Speech' the Racial Discrimination Act (Australia) doesn't protect a racial group from material offensive to them, if the offence is limited to truthful claims. In other words, truth is a defence with respect to the RDA.
Bolt fell foul of it (the RDA) because the headlines and first few paragraphs of his two articles made race the factor and the claims made were found untruthful, the evidence supplied to buttress the claims was found untruthful, and numerous gratuities throughout the articles made the entire tone likely to cause offense with race as a factor.
Bolt did not minimise the offence likely to be caused, nor did he provide a good faith (eg factually based) argument to make his claims, according to the judgement. If he had made a good faith argument and yet drawn an incorrect conclusion through an error of logic, for example, he may still have had a defence with respect to the RDA. It actually takes some effort not to have a defence with respect to the RDA.
Words can and do affect behaviour. If words lacked all such power, then it is remotely likely we would in vain continue to employ them for such purpose, and at such length.
I am not so convinced that the remedy of takedown, ie of removing the original offending article from online sites, is of any positive value; indeed, it prevents people from easily seeing what the offensive article was---at the one place where a remedy of a written (online) apology and correction might be applied effectively.
> If words lacked all such power, then it is remotely likely we would in vain continue to employ them for such purpose, and at such length.
We also wouldn't have any marketing or sales, since words "don't have any power".
> it prevents people from easily seeing what the offensive article was
I don't see that anyone reading it would come away with anything other than a reinforcement of their bigotry (cf The Big Lie: repeat often).
> at the one place where a remedy of a written (online) apology and correction might be applied effectively.
The apology ought to be put up there, but better would be the fact of Bolt's "criminal record" with his puff pieces to be recorded, sort of like "Arthur C Clark, inventor of the space satellite".
Lotta big words and concepts there, Rick, although it's very obvious you don't understand most of them.
Has anyone looked into where Bolt got his 'information'.
Apaprently his research consisted of google searches - which sites did he glean his info from?
Stormfront?
This topic raises the broader question of how one may seek to reconcile what most of us imagine is a public goodâââfreedom of the mediaâââwith other public goods we seekâââaccuracy, intellectual rigour in public commentary, social inclusion and so forth.
In my opinion, attempts by the state to use the force of law to regulate what may be uttered are an incipient hazard to confidence in the transparency of governance, and should only be entertained within very narrow and carefully defined limits and then only according to transparent protocols. There used to be an unofficial âd-noticeâ system in this country, and even then I found that dangerous.
It seems to me however that it would be possible to have a system in which breaches of the professional code of practice developed not by the state but by journalists might be judiciable. Breaches, rather than being punished by swingeing fines, could be entered, along with the reasoning, into a public register. So much of the media as declared itself to be compliant with good practice would be obliged to publish prominently extracts about their publications from the register on a daily basis listing the number of breaches and outstanding unresolved complaints that had been held to have sufficient merit to be the subject of judicial review. Any journalist or regular columnist who appeared would be obliged to have their âstatsâ (including mentions) alongside their by-lines. Those that declined would be deemed to be outside the system and would not be able to make claims to be amidst the responsible press.
Publications within the system could declare sections of their copy to be non-judiciable â since they were not intended as ânews or serious commentâ but something else (e.g. advertising, entertainment etc. ) Such sections could be marked with an appropriate âwashâ or watermark. e.g yellow wash for ranting blogs, blue for advertising, etc ⦠a specific disclaimer would attach warning that the group offered no warranty as to the accuracy of the copy, that the copy might well include serious errors of fact or inference and that readers should seek reliable sources of information upon which to rely before drawing conclusions.
People could then make up their minds how much weight to give to the claims being made.
He tried to belittle Aboriginal people because his deep seeded superiority complex, well now we know he knows less about his peoples law then the `Dumb" Aboriginals, these dumb Aboriginals know the law better then all the right wing looneys who defend the lying dutchman. I love that word, i must type it again. THE LYING DUTCHMAN. Does he even know his employers rules, a simple chap that needs self control, A basic human requirement
Wow, this Bolt guy is a real piece of work. Is there a law in Australia under which he can be barred from using a computer keyboard?
Despite some typos, this is quite a good piece on Blot:
http://indifferencegivesyouafright.wordpress.com/2011/10/02/understandi…
I also wrote this today:
I have great respect for those who have the skills and attitudes needed to work with putrescible waste in a âhands-onâ role. These people do an essential job, and while I donât know what they are paid, IMO, they deserve better pay than I get, because I canât imagine anyone could pay me enough to make doing what they do something Iâd endure.
I regard those who make it their business to go into the badlands of Murdochistan and work with an electric eel to winkel out the bons mots of the Blot in a similar light. I couldnât do it on a regular basis without feeling perpetually grossed out. It seems Ann Summers is such a person however.
Reaching back almost exactly 9 years in time to October 7 2002, she retrieved this little gem: Labor spellbound By Andrew Bolt from one of Murdochistanâs Blotpools:
For one thing, weâve had enough ministers practise voodoo economics and do vanishing tricks with our money, without Labor putting a real witch in charge.
Some context is needed here. The article itself was written at the time as a response to the ALP increasing quotas of female candidates in winnable seats.
Could passing a rule to reserve 40 per cent of Laborâs safer seats for women in fact force on Labor a bunch of politicians who are too New Age?
Blot then goes on to do the usual misogynist schtick, which those amongst LP who feel relaxed about tainting their day with this sort of stuff can by following the link. In an interesting way, it rather anticipated the subject matterof this thread. Then, as now, Blot was objecting to the idea of inclusion, and trolling that attempts at overcoming exclusion would inevitably prevent the more deserving from coming to benefit. By contrast with his remarks on Aboriginal identity, he didnât suggest that the beneficiaries of the Emilyâs List 40% proposal wouldnât be sufficiently female but almost the opposite â that they would in his view be typically female â i.e. given to irrational belief. Really, like Abbott of 1979, leave the men to the metaphoric ditch digging and the women to their housekeeping.
Whatâs also interesting, is that, as those who follow my link will discover, the 2002 article was reduxed by the Blot in 2009, as part of a piece reiterating the point about female unreason.
By 2009, the subject of action on climate change was for the Blot, the sum of all craziness, and so the âmillion womenâ campaign became yet more evidence that women were loopier than men. Polls purporting to show that that men were less interested in acting on the matter was âfurther evidenceâ of his earlier insight and of course further evidence, of course, that the great global warming scare is fundamentally irrational. If youâre a man, and especially the Blot, you are allowed to argue in a circle. Just as well he isnât female, because that would be further evidence of ⦠hang on ⦠never mind.
Back in 1979 or so, Abbott was warning of a plot by leftwing academics to lower academic standards, debauch public morals and have women forget their place in the kitchen, and 30 years later, Blot thinks itâs about New Agers and witchcraft and loopy but uppity women oh ⦠and Aborigines who arenât black enough for his liking.
In the spirit of exploring how what Blot writes âunites usâ I donned a metaphoric pair of impermeable waders and trudged through the resultant comments thread to the bitter end.
The result was one long series in which every misogynist within cooee gathered to redux their own heady blend of hatred of sexist slander and hatred of science. It wasnât until midway down page 2 of the 3 pages of comments that someone sounded a dischordant notebut him aside, no sexist trope was left unuttered and professing females lined up to affirm Blotâs point that women really were more irrational than men. This must have got boring, even for the Blotsters after a while, because just for variety some began conceding that the AGW âscamâ was invented by men.
Perhaps the most bizarre feature of the thread was the pervasive victimology that is de rigeur on Blotisttan. At least half a dozen contributors (I assume for the sake of argument that they werenât simply Blot-authored sockpuppets) praised Blot as âcrazy braveâ for his calling out of women as irrational and by and large unfit for mens business. Surely now, they all suggested or implied, âhatefilled irrationalâ responses would rain down upon this intrepid teller of unpalatable truth.
In three pages of posts, there was not one such response, and one person aside, nobody even politely arguing the toss. Blotâs page, at face value, âunitedâ all those who regard women as a group as unfit for high office, and as having doubtful claims over even the household budget.
Yes.
You're not kidding, are you? I quoted the judgment. Sheesh.
Right, but the crime is causing offense, not "a factual error that was an intentional lie" ... the latter merely robbed Bolt of the provided defence ... in section 18D, as noted in my quoted statement from the judge.
And Wow, you would be a much better person if you a) read the relevant material before getting into debates and b) bucked up and admitted error when it is clearly demonstrated. As it is, you're taking a page from the denialist scriptbook.
disingenuous
"I quoted the judgment. Sheesh."
And I quoted the Judge.
You know, the guy who made the judgement.
Sheesh.
From the link available (that you didn't give an alternative to):
"This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court's reasons is that contained in the published reasons for judgment which will be available on the internet at http://www.fedcourt.gov.au/ together with this summary."
And:
" 26. I have concluded that the conduct of Mr Bolt and the Herald & Weekly Times is not exempted by section 18D of the Racial Discrimination Act from being unlawful because:
(i) it was not done reasonably and in good faith in the making or publishing of a fair comment, within the requirements of section 18D(c)(ii) of the Racial Discrimination Act; or"
Therefore bad faith (a factual error that was an intentional lie) was indicated.
You're the one who asked "Now, where did you get your snippet?", fool, when it was from the judgment linked by Tim ... thus my "sheesh", whereas yours is unwarranted. And now you continue to either dishonestly or stupidly respond.
This link is to one of the better pieces on Blot that I have seen:
http://indifferencegivesyouafright.wordpress.com/2011/10/02/understandi…
It reveals Blot as someone for whom truth is secondary to winning the culture war.
Blot himself reminds us exactly 2 year ago in 2009 of his claim that the ALP's plans in 2002 to increase the number of women in winnable seats (Emily's List) was a project aimed at unreasonably privilgeing the more irrational half of the population (women in his opinion) In true Blot style he had written:
{{For one thing, weâve had enough ministers practise voodoo economics and do vanishing tricks with our money, without Labor putting a real witch in charge. Labor Spellbound (2002)}}
His 2009 redux was a response to the "million women" movement aimed at getting more women to hold conversations on climate action. Action on climate change was for the Blot, the sum of all craziness, and so the âmillion womenâ campaign became yet more evidence that women were loopier than men. Polls purporting to show that that men were less interested in acting on the matter was âfurther evidenceâ of his earlier insight and of course further evidence, of course, that the great global warming scare was fundamentally irrational. The need to avoid circular argument slipped past him here of course.
Needless this set his gang of flying monkeys off in full cry. The result was one long series in which every misogynist within cooee gathered to redux their own heady blend of hatred of sexist slander and hatred of science. It wasnât until midway down page 2 of the 3 pages of comments that someone sounded a dischordant note, but him aside, no sexist trope was left unuttered and professing females lined up to affirm Blotâs point that women really were more irrational than men. This must have got boring, even for the Blotsters after a while, because just for variety some began conceding that the AGW âscamâ was invented by men.
Perhaps the most bizarre feature of the thread was the pervasive victimology that is de rigeur on Blotistan. At least half a dozen contributors (I assume for the sake of argument that they werenât simply Blot-authored sockpuppets) praised Blot as âcrazy braveâ for his calling out of women as irrational and by and large unfit for men's business. Surely now, they all suggested or implied, âhatefilled irrationalâ responses would rain down upon this intrepid teller of unpalatable truth.
In three pages of posts, there was not one such response, and one person aside, nobody even politely arguing the toss. Blotâs page, at face value, âunitedâ all those who regard women as a group as unfit for high office, and as having doubtful claims over even the household budget.
That is the true measure of his contribution to public discourse.
bolt tries to play the "freedom of Speech" game against the Monthly.
failbolt
http://www.crikey.com.au/2011/10/10/blow-ups-aplenty-at-home-with-the-b…
The first issue causing grief was the revelation by Anne Summers in The Monthly that Andrew Bolt was previously engaged to a former work colleague at The Age. The woman in question has even gone so far as to provide The Monthly with a statutory declaration and showed copies of letters from Bolt
I hate Andrew Bolt. I disagree with almost everything he says & he got his facts wrong in that article.
But I have to say I also very much believe in freedom of speech and in the maxim - attributed but apparently falsely so to Voltaire - that "I may disagree with what you say but I will fight to the death for your right to say it."
I wish Bolt's victims here had taken him to court for Defamation rather than Racial Vilification and I think we need to be very wary of having Courts decide whether unpopular even horribly ugly and wrong opinions can be publicly expressed or not.
David Marr says Bolt was lucky he wasn't sued for defamation. If he had been then there would have been cheques written for millions of dollars for the plaintiffs and not just the publishing of a few statements that very few people are going to read in Bolt's newspapers. It may be easier to sue under the Racial Discrimination Act but the punishments are far weaker.
Stevo, that's what I thought as well, but apparently Bolt's articles about the aboriginal activists were just as anti-factual as his columns about science. He really is a dimwit - can't even do some basic fact-checking, apparently.
I'm curious.
Is it possible for Bolt to still be sued for defamation, independent of the matter of racial vilification? The two would seem to be legally separate, although the vilification findings would seem to lend weight to a suit for defamation...
using the RDAct was justified, why should a young Aboriginal already stigmatised have to question themself if they are worthy, or should I say.dark enough in some white racists eyes to better their life's, so yes it does effect more then the people defamed and only effects aboriginal people, also to win any monetary gain (even if for a good cause) would be used againts them in the murdoch press (all over the world).
Using the RDA was right, it was more then an attack on those mentioned by ...... ....
> But I have to say I also very much believe in freedom of speech and in the maxim - attributed but apparently falsely so to Voltaire - that "I may disagree with what you say but I will fight to the death for your right to say it."
Lots of people say that. What I REALLY think they mean is:
> "I may disagree with what you say but I will say I will fight to the death for your right to say it"
It's also bollocks. This case has NOTHING to do with freedom of speech. Not even your United States of America allow freedom from the consequences of your speech: like getting sued or jailed.