Already the Libertarian Right have begun to marshal their traditional arguments to cover Andrew Bolt’s disgrace by the Federal Court.
Bolt himself has screeched freedom of speech in the wake of his ascerbic tongue getting him into hot water.
Justice Bromberg’s judgment is very conscious of the free speech argument, and is not averse to Bolt being able to explore issues of race and racial identity.
Freedom of speech not at stake
Bromberg concludes his judgment thus: “nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people.
“I have not found Mr Bolt and the Herald & Weekly Times to have contravened section 18C, simply because the newspaper articles dealt with subject matter of that kind. I have found a contravention of the Racial Discrimination Act because of the manner in which that subject matter was dealt with.”
As Pat Eatock, the principal claimant, has said, it’s not that questions of authenticity of Aboriginality cannot be debated (it’s a constant of the Aboriginal debates in Australia) but it’s the malicious and hurtful intent that is the problem.
How racism works
Racism is always about power relations – the capacity to inflict pain, exploit others for gain, and assert an ideological superiority with hoped-for material benefits.
It can also be a response by those who have been dis-empowered. The claimants in the Bolt case could not be said to be “powerless”; they are all articulate, active and combative participants in Australia’s culture wars.
It was Bolt’s accusations of “bad faith” that riled them, as they indeed have riled him by taking him on. In effect they argued that he was acting in “bad faith”, inaccurately and selectively targeting them to bolster his own ego, and one might say advance the agenda of his mates such as those associated with the Institute for Public Affairs (who have now weighed into the fray).
The new frontier: cyber-racism
One of the most interesting elements in this outcome concerns the “blog” postings by Bolt (and his correspondents). Only one previous case of cyber-racism has been taken to its end-point since the 1995 amendments to the Racial Discrimination Act made racial vilification unlawful.
The Adelaide Institute/Toben case concerned Holocaust denial. It found Frederick Toben to have breached the provisions of the Act, despite his claims in defence (similar to Bolt’s) that his comments were “protected”.
Jeremy Jones on behalf of the Jewish community embarked on what would turn out to be a fifteen year odyssey (finished but not resolved in July this year in the bankruptcy court), to have Toben take down his site and cover their costs.
Toben was gaoled for contempt of court for refusing to accept a court take-down ruling, but then passed on his site to another anti-Semite who has created something even more bitter and disgusting.
Dealing with him will require another tortuous endeavour. Engaging with racial vilification takes courage and enormous fortitude; uttering racial vilification requires neither.
We still have a way to go
In the end Bromberg made no decision on the blog posts, arguing that their late introduction into the case did not materially change the issues, and it was too late in the process for Bolt and the Herald Sun to respond.
Nevertheless, the issue of how the apology is handled by Bolt and his newspaper (or if it is handled, we are still waiting to see whether an appeal will be lodged) and in particular how an apology in cyber-space might affect material that has been cached and reposted, opens up a very interesting set of questions.
These include what responsibilities site owners have for public postings (the Herald Sun already watches its blogs for defamatory material that might end it with a damages verdict) that might infringe the Racial Vilification Act.
Given the eruption of racial vilification in cyberspace, a public debate in this area is long overdue. When signing onto the European Cybercrime Convention earlier this year, Australia specifically declined to accept the additional protocol on Racism and Xenophobia. As we have seen with Mr Bolt, denial won’t make the issue go away.