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"...public opinion deserves to be respected as well as despised" G.W.F. Hegel, 'Philosophy of Right'

Andrew Bolt + the right to free speech « Previous | |Next »
April 1, 2011

I've been preparing for a two week holiday and photographic trip in Tasmania that starts tomorrow. Blogging will be light for the next two weeks even though I will be using Telstra's pre-paid mobile broadband.

I've been following the Andrew Bolt case--or more accurately, the race discrimination case taken by a group of indigenous Australians against the Herald and Weekly Times and its populist columnist for breaching the 'Racial Vilification Law in Australia.

The defence of Bolt from conservatives such as that by Ted Lapkin in The Age is that this political correctness gone mad:

The plaintiffs seek to exploit the coercive power of the state to impose a permanent ban on words that they find personally upsetting. Nothing could be more childishly solipsistic. Nothing could be more inimical to democracy...A regime of government coercion to enforce the protection of tender feelings must be antithetical to political liberty. There can be no right to be shielded from personal offence or insult in a truly free society. For freedom of expression to have any real meaning, we must guarantee it to those whose views we despise.

So how do you guarantee freedom of expression in a liberal society? According to Lapkin our freedoms depend on the anti-democratic Racial Hatred Act being repealed because our rights are endangered far more by human-rights bureaucrats who want to dictate what people can and cannot say than by the illiterate gibberish coming from the likes of Fredrick Tobin or left-wing anti-Zionists.

This defence of free speech is okay as far as it goes. There are also plausible arguments that there are grounds for amending the Racial Vilification Act (1975), as it currently stands; and for broadening freedom of speech since freedom political communication implied in the Constitution is not a broad freedom of speech as in other countries, but rather a freedom whose purpose is only to protect political free speech.

However, Lapkin does imply that anyone can say anything at any time. There are limits to, or restrictions on, free speech --eg., making grievous errors, vilification, obscenity, defamation etc --which Lapkin neglects to mention in his attack on political correctness. Justice Holmes, speaking for the US Supreme Court's rejection of unlimited freedom of speech in the US put it this way:

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.”

The right to freedom of expression does not protect statements that are uttered to provoke violence or incite illegal action. It is also well known in common law that some public interests----national security (eg., sedition) justice, or personal safety --override freedom of speech. Freedom of political free speech in Australia is a boundary which can be adjudged to be breached.

Secondly, Lapkin's defence of Bolt presupposes the principle of rights. The problem here, as Richard Ackland points out in the Sydney Morning Herald, is that:

The difficulty is we do not have a right to free speech, beyond the vagaries of the common law. If we had a charter of rights, Justice Mordecai Bromberg would be required in this case to balance Bolt's right of free speech with the rights of the applicants not to be racially picked upon and we'd have a better idea of where the line lies.

The irony of course, is that Bolt has campaigned furiously against a charter of rights. Poor Bolt. He's discovering the limits of a liberalism based on utilitarianism and the idea of harm; limits that would be overcome by a rights based liberalism.

| Posted by Gary Sauer-Thompson at 8:55 AM | | Comments (3)


Not Lapkin.
Why must newspapers constantly recycle mothballed IPA hacks rather than approach people who might have some thing worthwhile or new to say.
We get tabloid with Lapkin and broad sheet with GST, why is GST or some one the like not in the newspapers, rather than a cheap, amoral agent- provocateur, or both viewpoints, as the Age used to do, for "balance"?

The issue could end in the High Court, which may have to more clearly define the right to free speech, as this right is only implicitly recognised in the constitution.

It's been interesting reading the reports on proceedings in court, they have sliced'n diced Bolt, quite exquisitely.
Obviously an experience for him (and us) to be in a situation where intelligent people can take him on, on his guff. At last, default right of reply for his victims, let alone the rest of us who have seen his lies uncontested for so long, by way of the lawyers and judges.
Most important case of its kind since Cash for Comments
Free speech; yes!
Hate speech, more Mulrunji's in the short term and brownshirt totalitarianism, eventually.