Silenced In Court

Andrew Bolt is getting sued. Don’t applaud yet. There’s been a lot of outrage about the federal government’s proposed internet filter. But lawsuits like the one now faced by the prominent conservative Herald Sun columnist are as much a restriction on freedom of speech as anything Communications Minister Stephen Conroy has come up with.

Nine people are suing Bolt for an article that claimed their Aboriginal self-identification was “fashionable”. He had said they all had part-European, part-indigenous heritage (and fair skin) with an opportunity to describe themselves as a range of nationalities. But, he wrote, they chose to describe themselves as Aboriginal. Doing so gave them “political and career clout”.

At worst, Bolt is deliberately and provocatively disrespectful.

But as their lawyer has pointed out, there are two tests of whether someone is Aboriginal. The first is an objective genealogical test: a fairly clear cut question of whether they have Aboriginal ancestors. The second is subjective: whether a person chooses to self-identify as indigenous, and whether they are “communally” regarded as such.

Bolt’s columns criticised political appointments and government awards that pivot on an individual’s Aboriginality. They’re absolutely within their rights to apply for those grants, prizes and positions. But like it or not, by sponsoring things like indigenous-specific art and literary awards, the government makes what constitutes Aboriginality a political question.

And it’s a question academics have been trying to unpack for decades. Universities teach courses in the “concept of Aboriginality”. Surveying the literature in 2002, the Parliamentary Library could only conclude “an individual’s ethnic identity is always to some degree fluid, multiple, differing in degrees, and constructed”.

Of course, Bolt tackles the issue with trademark belligerence. The merits of his argument will now be tested in court. But put aside the conservative commentator. This isn’t about the collected works and opinions of Andrew Bolt. And put aside the complexities of racial identity, Aboriginality and reconciliation.

This case is troubling because of what it says about our right to freedom of speech. If successful – or just really expensive to defend – this lawsuit could have a stifling effect on political debate.

The 19th century philosopher John Stuart Mill argued that only by airing contested views publicly and freely could the truth be known. Societies need free speech if only to test and challenge controversial opinions.

And we’re not going to have those necessary debates while legal action stifles one side. No matter how wrong or misguided that side may be.

Silencing Bolt doesn’t just silence him. It potentially silences the speech of others who might be afraid of being similarly dragged through the legal system.

After all, Bolt and his employer can afford to defend themselves. No doubt they have lawyers on call. Newspapers know their way around court.

By contrast, bloggers, amateur journalists, Twitterers and Facebookers commenting on sensitive political issues – for whatever reason, with whatever motives – are much more exposed to punitive legal action than newspaper columnists are.

Should only the rich be able to have controversial views? If anything is going to suffocate the blossoming citizen media, it will be lawyers.

Bolt is being challenged under the federal government’s Racial Discrimination Act. But that’s hardly the only law on the books that has a damaging impact on free speech. Our politicians have a long and shameful history of using Australia’s defamation laws to sue their critics – threatening someone with a defamation suit is a public relations tactic.

In Victoria, our Racial and Religious Tolerance Act, introduced in 2001, has been co-opted as a stick for religious groups to hit each other.

First, the Islamic Council of Victoria took the fundamentalist Christian Catch the Fire Ministries to court. Then a Wiccan prison inmate took the Salvation Army to court. Then the Australia-Israel Jewish Affairs Council threatened to take the Islamic Information and Services Network of Australasia to court.

That’s a shabby record for a law supposed to promote tolerance, not division.

Suppressing offensive views can be counterproductive. The churches and mosques targeted by the Victorian Racial and Religious Tolerance Act were able to say their beliefs were being persecuted – attracting more followers. The victimised dissident is a hero, not a villain.

To his credit, Bolt is a prominent critic of Victoria’s vilification laws. Last year, the Human Rights Consultation Committee faced the task of recommending what should appear in an Australian bill of rights. It struggled to balance our right to free speech with a new “right” demanded by some – the right to not be offended by the speech of others.

But there are an infinite number of ways people could be offended. How could we possibly prevent all outrage?

You can have the right to free speech, or you can have the right to be protected by the government from the offensive speech of others. You can’t have both.

There are other ways to respond to distasteful views.

Refuse to buy the Herald Sun. Tell your friends to do the same. Condemn it in other opinion columns. The solution to bad speech is more speech. If something is offensive, it deserves to be condemned, loudly and often.

This week saw the first Aboriginal member of the federal House of Representatives sit in Parliament. Ken Wyatt is a Liberal. He promised to advocate for Aboriginal and Torres Strait Islander people in Parliament. His mother was one of the stolen generations. In his maiden speech, Wyatt thanked Kevin Rudd for the 2008 apology.

That’s a genuine step towards reconciliation. Wielding the legal system as a weapon to try to silence critics isn’t – no matter how offensive they might be.