A most extraordinary attack was launched yesterday, on free speech in Australia, and on an individual. It was by a former Federal Court judge, now a barrister, and it was an attack sanctioned by a court.

It was launched by Ron Merkel QC, for a group of plaintiffs who have taken Andrew Bolt to court under the Racial Discrimination Act for several articles about Aboriginality.

The opinions expressed in Bolt’s articles were grossly offensive and wrong headed. They deserved condemnation. But they were no more than offensive. Now he finds himself in court, having to defend his words, to justify himself.

This has prompted plenty of spiteful delight from his critics. But anyone who supports free speech cannot but be sickened by what went on in the Federal Court in Melbourne yesterday.

It’s easy to defend free speech when you agree with what’s been said. The only real test is when you disagree, and disagree strongly. Bolt deserves the support of free speech advocates, regardless of how much they may disagree with his bilious outpourings.

Merkel’s opening remarks constituted a savage assault on Bolt. He was directly linked by Merkel to Nazism and the Holocaust, with references to the Nuremberg race laws and the 1930s. If Godwin’s Law was a legal maxim, the plaintiffs’ case would not have made it beyond the first hour.

Bolt’s articles, Merkel suggested, could lead to genocide. Possibly Merkel didn’t mean genocide in the accurate sense of the term but in the more contemporary sense in which its original connotation of mass murder has been replaced with other, more postmodern forms such as cultural destruction, which has debauched the proper, devastating meaning of the word. But Merkel’s Holocaust reference seemed to suggest he was pretty directly linking Bolt to mass murder.

Quite simply, there can be no greater vilification than to link someone to racial extermination, and that’s what Merkel’s submission did.

Bolt, it is true, frequently indulges in extraordinarily personal attacks, though I don’t believe that he has ever linked someone to genocide simply for their words. But Merkel’s remarks are backed by legal action to silence him. This is not part of any contest of ideas or aggressive public debate. This isn’t commentariat-class chatter. The point of the legal action is to silence him.

Merkel tried to address the free speech issue by saying Bolt’s material caused such direct harm as to override any right to free speech. “Freedom of speech does not give you the right to stand up in a crowded theatre and shout ‘fire’,” he said.

That analogy is Oliver Wendell Holmes’s famous test. The full quote is:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

In essence, are the words used ones that have directly caused harm? Bolt’s columns were, undoubtedly, grossly offensive to the individuals concerned. He is to be condemned for such a disgusting attack. But how does the test invoked by Merkel apply? Did one of Bolt’s readers, so outraged at these alleged career Aborigines, harm any of them? Even if that occurred, unless Bolt had urged such behaviour, it would fail the test invoked by Merkel.

Like Derryn Hinch, convicted for naming two p-edophiles, 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. Even Bolt’s employers at News Ltd, normally a fountain of rage against “political correctness gone mad”, appear quiescent in the face of the savage legal attack on one of their columnists.

Bolt’s opportunity to respond will come. And ultimately, the court will make its decision. But if you find yourself hoping he loses in court, you can’t with credibility criticise any attacks he may make in the future. And you can’t with credibility complain about the court-sanctioned erosion of free speech.

*As this matter is still before court, Crikey is not allowing comments on this article. If you wish to respond email [email protected].