An attack on free speech or a win against racial offence in the media? The Federal Court ruling yesterday that Herald Sun columnist Andrew Bolt breached the Racial Discrimination Act divided the commentariat into two distinct camps.

The ruling related to two Herald Sun columns that questioned the “Aboriginality” of several well-known light-skinned Aboriginals, arguing that they’d use their indigenous identity to gain financially and career-wise.

When reading out his judgment yesterday, Federal Court Judge Mordy Bromberg noted that the mistakes and language of Bolt’s columns meant they weren’t exempt from the parts of the Act that accept “fair comment”.

“The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language,” said Bromberg.

Crikey‘s Andrew Crook was in the courtroom yesterday. As he wrote in Crikey:

“Before a public gallery packed with supporters of Pat Eatock, who brought the case on behalf of nine fair-skinned members of the Aboriginal community and top Herald Sun brass Phil Gardner and Simon Pristel, Bromberg delivered a blunt assessment of both the racial offence called by Bolt and his professionalism as a journalist.”

After the ruling, Bolt stood on the court steps and read out a statement. “This is a terrible day for free speech in this country,” said Bolt. “It is particularly a restriction on the freedom of all Australians to discuss multiculturalism and how people identify themselves. I argue then and I argue now that we should not insist on the differences between us but focus instead on what unites us as human beings.”

In March, when the case first came to court, Crikey‘s Bernard Keane argued that regardless of your opinion of Bolt and the columns in question, this was an attack on free speech:

“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.”

Is this really about free speech? “A terrible day for free speech in Australia, or just a terrible day for Andrew Bolt and bad journalism?” asked Karl Quinn in The Age.

Bolt was unrepentant in his latest Herald Sun column this morning:

“For expressing such views, in such language, I have lost my freedom to put my argument as I did.

And be warned: use such phrases as those yourself, and you too may lose your right to speak.

But as I say, Justice Bromberg insists he hasn’t stopped debate on racial identification, unless, apparently, your adjectives are too sharp, your wit too pointed, your views too blunt, your observations not quite to the point, your teasing too ticklish and your facts not in every case exactly correct.

And even then, having jumped every hurdle and written with the forensic dullness of a Reserve Bank governor, you will run the risk of a judge deciding that whatever you’ve written is, after all, the very opposite of what you really meant.”

But this isn’t an attack on free speech. Bolt’s columns were wrong and the judge confirmed it, writes David Marr in The Sydney Morning Herald:

“Freedom of speech is not at stake here. Judge Mordecai Bromberg is not telling the media what we can say or where we can poke our noses. He’s attacking lousy journalism. He’s saying that if Andrew Bolt of the Herald Sun wants to accuse people of appalling motives, he should start by getting his facts right.”

As the Crikey editorial said yesterday:

“If today’s judgment turns Bolt into some kind of martyr – as it surely will among his coterie of like-minded supporters, including many in the populist media who will rally to him like moths to a flame – he may turn out to be the courtroom loser who wins the propaganda war.”

Peter Fray

Join us today for just $1 a week.

Get your first 12 weeks for $12. Cancel any time.

Our journalism is funded directly by our members — that’s how we maintain our fierce independence. We don’t rely on advertisers, clickbait or culture war obsessed columnists.

If you like what we do, join us today.

Peter Fray
Editor-In-Chief of Crikey

JOIN NOW