Monday, October 03, 2011

How conservatives equate free speech with telling lies

News Ltd columnist Andrew Bolt's recent conviction under the Racial Discrimination Act unleashed a perfect storm of conservative backlash which was remarkable in the similarity of its line from many different quarters. All of them relied on the same serious omissions and misinterpretations of the judgement, each commentator precisely mirroring Bolt's original crime. This has polarised the press, with News Ltd backing Bolt while other outlets report the judgement in a more balanced way. Opposition Leader Tony Abbott even wants to amend the Act to allow this sort of deception.

Typically the conservative commentators do not mention the serious errors of fact and distortions by Bolt that underpin the judgement. They all claim his free speech was curtailed ("gagged") because of political correctness and simply ignore that the judge explained this was not the case, because had the complaint been brought under defamation laws Bolt also would have lost.

The sheer scale of this misinformation will be effective because of the tremendous reach of Rupert Murdoch's press - he owns 70% of Australian titles. Many of his readers do not also read other more reputable titles and so will never hear the full story, with the result that voters, for instance in marginal seats in Sydney's western suburbs, are seriously misinformed on many issues News Ltd campaigns on, such as climate change. This has the power to tip elections and change history based on, effectively, lies.

Below is a typical defence of Bolt from the right, this one from Adam Creighton, a research fellow with the Centre for Independent Studies. I emailed Creighton pointing out his errors but he has not replied, apparently ignoring my analysis. Life would be so simple if you could just ignore inconvenient realities. But then that's the conservative outlook.

 [The boldings in the following text are mine, highlighting suspect phrases]


Bolt tongue tied
Sometimes it takes an injustice to beget justice. So it may be with Andrew Bolt’s infringement of the Commonwealth Racial Discrimination Act 1975, as a result of articles he wrote in 2009 suggesting that some people claim ‘aboriginality’ for personal gain (a logical certainty at the very least).
Probably not many Australians knew the extent to which courts and government curtail freedom of expression. They do now.
Snuck into the Act by the Keating government in 1995, Section 18C outlaws expressing views in public that encompass ‘race’ and offend people of a particular ‘race.’ Australian courts are now spending valuable public resources inquiring into whether and to what extent people have been offended.
If that is not gratuitous and silly enough, Judge Bromberg’s interpretation appears sorely wanting. Section 18D allows exemptions for ‘fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.’
Judge Bromberg, a former Labor party pre-selection contender, ignored that part because ‘of the manner in which the articles were written [which included] inflammatory and provocative language’! It is not for the judge to pass judgment on the quality or tenor of a particular communication when such criteria are absent from the relevant law.
Moreover, he ignored the title of the relevant sections of the Act, which explicitly refer to ‘behaviour based on racial hatred.’
Bolt’s articles patently had nothing to do with racial hatred. Nevertheless, the judge believed the term had a ‘broader field of operation ... infused by the values of human dignity and equality.’ That’s a lovely sentiment, but it’s not what the law says.
It will be surprising if the High Court does not strike down this verdict.
This outcome is also a reminder of the inconsistency and hypocrisy such laws engender. It is quite OK, for instance, for Larissa Bernhardt (one of the complainants in the case and NSW Australian of the Year) to claim in public that fellow Aborigine Bess Price is more offensive than a man having sex with a horse [Is it? - ed] because of Price’s views on Aboriginal policy. But it is not OK for Bolt to highlight the perverse incentives created by well-meaning laws.
More generally, using laws to shape people’s morals is ineffective and wasteful. To paraphrase former High Court Justice Harry Gibbs, if we reach a point where we need to codify our morals, then there’s probably not much worth codifying [Isn't that exactly what the law does? - Ed.] .
Adam Creighton is a Research Fellow at The Centre for Independent Studies


Oh - the prize headline in this imbroglio has to be Mike Carlton's "Nuts come out as truth has bolted"

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