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  1. The Bolt decision will have implications for us all 512 Comments Andrew Dodd No doubt the Federal Court would like us to see its judgement against columnist Andrew Bolt today as a call for decent standards in journalism, rather than as a landmark ruling against freedom of speech. But in reality it will not be seen that way because it is a slap in the face for free expression. It limits the kinds of things we can discuss in public and it suggests there are lots of taboo areas where only the meekest forms of reporting would be legally acceptable. Justice Mordy Bromberg ruled in favour of nine fair skinned Aborigines who claimed that two articles written by Andrew Bolt two years ago were inflammatory, offensive and contravened the Racial Discrimination Act. There is clear logic in the judge's ruling, but my contention is that it fails to establish why Bolt’s writings did not qualify under the freedom of expression exemptions within the Act and it falls short of establishing that Bolt's motives were as debased as the ruling suggests. Bromberg makes it clear that Bolt and the Herald Sun lost their case because Bolt got his facts wrong and because he went out of his way to distort and inflame and provoke. So it is important to work out exactly what was being argued about. The lead applicant, Pat Eatock, claimed that Bolt had insinuated that she and the other applicants were not genuinely Aboriginal and that they were only pretending to be Aboriginal so that they could grab benefits that are only available to Aboriginal people. Under the Racial Discrimination Act she needed to prove that at least some fair skinned Aboriginal people were offended or insulted by Bolt's comments. Not a difficult thing to do. And she had to prove that Bolt made those offensive comments because she was of a particular race or color or ethnic origin. Again, a pretty easy thing to prove, given Bolt's entire argument was about the color of her skin and her ethnic origin. Strangely the Herald Sun tried to argue these points. It claimed the articles were not offensive and that race had nothing to do with the motivation for writing the stories. One might ask who they thought they were kidding? The Herald Sun also argued that even if someone could find the articles offensive, it is irrelevant because Bolt wrote his piece in good faith and was therefore entitled to an exemption under the Act, giving him a right to free speech. Justice Bromberg clearly rejected the idea that the articles were not offensive. He found that the people named by Bolt genuinely identified themselves as Aboriginal – and had done so since birth. He found that none of them had used their identity inappropriately to advance their careers. In short he had no problem with the idea that they are bona fide Aborigines. Bolt tried to argue that because he didn't incite racial hatred, he was entitled to a measure of protection under the law. The judge thought otherwise. He found that the Racial Discrimination Act is actually about promoting racial tolerance and human dignity and equality. Controversially, the judge also ruled that it's the group of people who have been offended that should determine whether or not a comment is offensive. In other words, the views of an average Herald Sun reader are not important here. It's the views of Aboriginal people that matter. In essence this case was lost on this point - the belief by the judge that "people should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying". Bolt did not get an exemption under the Act because of "the manner in which those articles were written" and because "they contained errors in fact, distortions of the truth and inflammatory and provocative language". I think the ruling is dangerous because it asserts as indisputable fact that Bolt's articles were not reasonable and were not written in good faith and do not classify as "fair comment". The Judge clearly believes they were not written with a genuine public interest in mind. But in the end this is just one person's view. Although those of us that don't like Bolt's writing might think we understand his motives, we really don't have a clue whether Bolt honestly held these views. Perhaps he was being courageous, rather than reckless, in seeking to talk openly what many would say quietly. I don't share his views but I can see some merit in the argument that true racial tolerance is only achieved when we can ventilate unpopular views openly and have a robust discussion about them. In any case do we really want to silence debate on irksome and uncomfortable topics? Given that many in the judiciary have a very dim view of even the most responsible forms of journalism, how would the courts have us write about topics when the conclusions or opinions are going to be unpleasant for the people who are being written about? If the offended people are the arbiters, how should the media question the behaviour of minority groups? In any case, this has a fair way to go yet. This is most certainly heading to the full bench of the Federal Court and then perhaps the High Court. Eventually, the final ruling will have serious implications for us all. Andrew Dodd has been a journalist and broadcaster for over 20 years, working for The Australian, Crikey and the ABC amongst others
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