Perhaps it’s a sign of the times, or perhaps it was always thus, but it’s frustrating just how much public debate, even when it seems to be about important principles, is driven by partisanship. So it is with the case of Andrew Bolt: those who detest Bolt’s views applaud, with very few exceptions, his conviction for racial vilification, while those who defend his right to express himself turn out, again with few exceptions, to be his political supporters.

So it’s necessary to start by setting out my views. I think Bolt is provocative, and I agree with most of what the supporters of yesterday’s decision have said. I accept that Bolt was acting in bad faith; I accept that he was wrong about his facts, and that he was recklessly attacking people’s sense of their own identity, a deeply wounding matter.

In short, I think Bolt is disliked. But I don’t believe that being disliked of itself is grounds for the legal suppression of someone’s views.

The state exists not to promote virtue and punish vice in general, but to protect our rights and to provide particular goods that cannot be supplied privately. Lies, malice, offence — none of these are punishable by themselves, only when they infringe someone’s rights or otherwise harm the fundamental interests of society.

I respect those who believe that racial vilification is such an important matter that it justifies a restriction on free speech, although I think they are wrong. But I have little time for those who try to tell us – as (to pick one example among many) David Marr does in this morning’s Age — that “Freedom of speech is not at stake here.”

Any restriction on what people are permitted to say is a limitation of free speech. The restriction may be justified or not, but either way the price is real. It’s one thing to say the price is worth paying, but quite another to pretend it doesn’t exist.

Some restrictions have fairly obvious justifications — fraud, blackmail, false advertising. We restrict speech in order to protect people’s security in their persons or property. Others are more dubious: p-rnography, defamation, sedition, blasphemy, protection of intellectual “property”.

I would scrap most of this latter group, but in their defence at least it can be said that they are of long standing; people know in advance that there are problem areas in which they have to tread warily. Any new restriction, however, deserves to be treated with the strictest scrutiny: is it really necessary to protect some vital interest?

In the case of racial vilification, I think the answer is clearly “no”. Even if you believe people have a right to their reputation (I don’t), we already have the law of defamation for that. Nor are we talking about “fighting words”, direct insults that might threaten a breach of the peace. This is public debate, where the cure for bad opinions is better ones.

Trusting the state instead leads to a vicious circle: as people resort more to the law rather than public opinion to counter lies and offence, debate degenerates, that option seems less and less viable, so laws have to be extended further to meet the deficiency. And anyone who thinks that new laws will consistently be used to benefit the poor and marginalised and against the interests of the rich and powerful has, let us say, a poor understanding of how government works.

It’s true that the judgment against Bolt is narrowly drawn; it does not represent, as some of his supporters claim to believe, a blanket ban on discussion of racial topics, at least for those who take the trouble to get their facts right. But that is no reason not to be concerned.

It’s rare that any freedom is lost all at once. Attacks on freedom always start with the easy targets; no one much wants to defend the p-rnographers, or the fundamentalists, or the muck rakers. But laws that are used against them today may be drawn a little wider tomorrow, and before we know it we find that the state is deciding for us what opinions are to be permitted.

H.L. Mencken put it well: “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”

He might almost have had Andrew Bolt in mind.

Peter Fray

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