It's easy to defend free speech when you support a speaker's views. It's harder when you oppose them. Now, after the ruling in the Bolt case, free speech champions – even those who dislike and disagree with Andrew Bolt – should be speaking out, wrote CLA's CEO Bill Rowlings in the online journal, The Punch.

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Court ruling restricts freedom of speech

It’s easy to defend free speech when you support a speaker’s views. It’s harder when you oppose them. Now, after the ruling in the Bolt case, free speech champions – even those who dislike and disagree with Andrew Bolt – should be speaking out…

By Bill Rowlings, CEO of Civil Liberties Australia, writing on The Punch, online journal: http://www.thepunch.com.au/

Article begins:

They line up, to the right and to the left, the self-appointed arbiters of political and societal fashion, the media commentariat. From their pulp pulpits they lay down how we ordinary Australians should think. Their words today are the gospels of tomorrow, regurgitated in dozens of accents and emphases throughout workplaces, bars and coffee shops as well, and re-broadcast by phone, email and Twitter.

The best known is Alan Jones, motor mouth of the airwaves, syndicated nationally on commercial radio, hard-core conservative. But there are a dozen or two others, in newspapers and on radio and TV, of various political shades. Most of the time, the harsh pronouncements wash us by, grating and irritating in equal measure on either side of public debate. But occasionally they hit the mark, roughly on target: a surge of public opinion forces focused governments to respond to what appears to be the will of the people.  Whether the commentariat reflect public opinion, or create it, is an unresolved question.

Occasionally though, the slings and arrows wound deeply, and someone reacts. Mostly, it’s by trying to use the same media outlet(s) to retaliate. But, having much less access and control, the wounded generally whimper away, tails dragging, after days or weeks of dissatisfaction with how the media responds to injustice.

Now there’s the Bolt case (decided in the Federal Court on 28 September 2011), which may rewrite some media “rules”. Nine people of Aboriginal descent who self-identified as having been maligned – the Maligned Nine – used the legal system to try to achieve their idea of justice. Andrew Bolt, an ultra-conservative member of the commentariat, was accused of scathingly tearing strips off fair-skinned Aborigines for choosing the darker heritage path, rather than presumably the white way to truth, justice and voting Liberal.

Judge Mordechai Bromberg in the Federal Court ruled that Bolt, and therefore also the Herald and Weekly Times (part of News Corp), had contravened the Racial Discrimination Act by focusing on racial identity in articles which had “errors in fact, distortions of the truth and inflammatory and provocative language”. Criticising how people identified themselves racially was not the problem, the judge said. What was missing was the absence of reasonableness and good faith and fair comment in the articles.

There are many who will exult in Bolt’s public defeat: his patrician demeanour and superciliousness does him no favours. But there are others, like me, who will be horrified by what the legal ruling does to freedom of speech in Australia.

The answer to speech or words permeated wholly or partly by hate or stupidity is more free speech, not less. People who are maligned should be able to speak out or to write, in the same forum and in others forums to a similar length, to highlight the wrong-thinking that lies behind the typical Bolt-like misinformation, misogyny or ignorance about miscegenation.

Bolt riles people with his cutting words, as Bernard Keane wrote when the court case opened in March 2011. But Keane also pointed out that, like Derryn Hinch, who was convicted for naming two pedophiles, “the outspokenness of the figure concerned obscures the bigger issue, that there is a casual disregard for free speech in the Australian legal system and, for that matter, in our media”.

In civil liberties, you’re forever slip-sliding either side of a balancing point, trying to evaluate the rights of one person, or group of people, against another. Sometimes it’s hard to find the balance, but it is not in this case. Bolt, for all his many sins, is now the victim…and so is Australian freedom of speech, particularly in the media.

Freedom of speech includes the freedom to offend or affront, as Bolt did. Of course, we'd prefer it to be politicians and people in power who were affronted, rather than individuals who don't have platforms like Bolt’s – blog, newspaper column, radio segment or TV show – to defend themselves.

Free speech allows fools and bigots, and commentators like Bolt, to out themselves and put objectionable views in the public space where they can be appropriately debated, rebutted and/or ignored.

Defamation laws and public safety (shouting 'fire' in a crowded theatre) should be the only limits on free speech. Vilification, which doesn't rise to incitement of violence, shouldn't be criminalised, but should rightly be condemned by society with mandated rights of reply made freely available in the same media to the same length and prominence. The issue should be about how we force the media to give equal time and weight to outraged responses, not whose lawyer has the bigger wig.

In this case, freedom of speech has been lost at least a little, if not a lot. Australia now has a major task to try to wind it back. Free speech is not owned by the courts: every Australian owns a little bit, to use when he or she wants or needs to. Because we own it, we must defend it…even when that means supporting the right to free speech of members of the media commentariat whom we personally dislike.

Bill Rowlings is CEO of Civil Liberties Australia. His background is in media, public relations and management.

ENDS