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

it's just bad journalism from News Ltd « Previous | |Next »
September 29, 2011

News Ltd's response to the Federal Court judgement handed down in the Bolt case by Judge Mordecai Bromberg is predictable. Freedom of speech (of the media) is at stake here. It's a bad law. This is maintained even though the Racial Discrimination Act, has embedded in it a strong freedom-of-speech defence: insulting or humiliating people because of their race or colour is not unlawful when it is done "reasonably and in good faith" in pursuit of a matter of public interest.

Thus we have this kind of rhetoric from Chris Merritt, the Legal Affairs editor of The Australian, saying:

The court's "Bolt principle" will encourage Australians to see themselves as a nation of tribes - a collection of protected species who are too fragile to cope with robust public discourse....It will limit public debate on the issue of race and lead to public policy that will be dismissed by those whose views are not heard. It will encourage people to see themselves not as Australians but as separate racial groups. By thinking in such racist terms, they will have the advantage of a law that is ridiculously skewed in their favour.

The argument ignores what Bromberg said that the language utilised in the newspaper articles was inflammatory and provocative and that Bolt had got his facts wrong in that the individuals whom he wrote about had been raised with an Aboriginal identity and enculturated as Aboriginal people. Freedom of speech is not an absolute right.

News Ltd covers up the bad journalism by its columnists with its rhetoric about strong journalism causing offence whenever it exposes hypocrisy and Bolt providing the sort of robust exchange our society should expect and defend. This leads the Australian's editorial:

to the inescapable conclusion that the 1995 racial vilification amendments to the Racial Discrimination Act were a step too far for a liberal democracy. At a time when issues of immigration, racial preference and multiculturalism need to be debated in an open and mature manner, these laws have thrown a dangerous blanket over free speech.

The Labor Government is the problem because it is considering new privacy protections and is pressing ahead with a media inquiry, and this creates an ominous momentum against press liberty. An authoritarian state looms for News Ltd. James Paterson of the IPA agrees:
It is a risky step to grant government the power to decide what can be discussed and debated in a democracy. A free society is best preserved by allowing controversial opinions to flourish in an open debate. Social attitudes change over time, and what government may regard as heretical in one generation may be accepted wisdom in another. Prematurely outlawing discussion on a controversial topic is an attempt by government to freeze social attitudes in time by limiting debate.

This ignores the judgement that Bolt that its okay to interrogate notions of identity and culture but not to make stuff up, present it as fact (he said that Ms Berehndt had a white father, when instead he was, in fact, black) and then be rude about it. The judge found that Bolt's articles contained "erroneous facts, distortions of the truth and inflammatory and provocative language" and the removal of two blog posts and an apology will satisfy Justice Bromberg.

The inference is that journalists (especially those outraged partisans from News Ltd using the bully pulpit) pay a little more attention to getting the facts right and to take responsibility for what and how they write. They should not be deliberately inciteful and untruthful.

The News Ltd position ignores that the right to freedom of expression is limited to its reasonable and good faith exercise having regard to the right of others to be free of offence. The requirement of proportionality does not involve the subjugation of one right over the other and is consistent with achieving a balanced compromise between the two.

Bolt doesn't see it this way of course. He finishes his column thus:

Despite Justice Bromberg's assurances, I feel that writing frankly about multiculturalism, and especially Aboriginal identity, yesterday became too dangerous for any conservative. It's simply safer to stay silent, or write about fluffy puppies instead. And so the multiculturalists win. They win, because no one now dares object for fear of what it will cost them in court. Hope they're satisfied, to win a debate not by argument but fear.

He's lost his freedom. He's been silenced. The problem is that he doesn't address the bad journalism issues Judge Bromberg highlighted---apart from saying, "I also made mistakes, Justice Bromberg said, although none seemed to me to be of consequence." That's how he glosses the errors in fact, distortions of the truth and inflammatory and provocative language" that were deemed to be central to Bromberg's judgment. Bolt doesn't appear to realize that if the appellants had brought a claim against him for defamation, they would have won.

Journalism is subject to the rule of law, even bad, shoddy journalism.

My suspicion is that the knee jerk reaction of many journalists is to side with News Ltd: Bromberg's judgement is an attack on the freedom of expression of the press. The press is going to bleat big time on this without much in the way of self-criticism of its practices of rushed, poorly-researched, partly-informed and partisan opinion commentary that is daily churned out by the Fourth Estate.

An example is Andrew Dodd's position that Bromberg's judgement "limits the kinds of things we can discuss in public and it suggests there are lots of taboo areas where only the meekest forms of reporting would be legally acceptable." It means that journalists cannot ventilate unpopular views openly and have a robust discussion about them.

Bromberg's judgment, an interpretation in law in relation to an act of parliament, is dismissed by Dodd as in the end being "just one person's view." Dodd doesn't appear to realize that Bromberg makes a judgment using the set of laws handed to him in accordance with the ethos of legal reasoning.

Update 2
The most considered response is that by Jonathon Holmes who says: that "... Justice Bromberg's interpretation of the Racial Discrimination Act, and his application of it to Bolt's columns, strikes me as profoundly disturbing." He says that "His Honour's claim that his judgment need not affect the media's freedom to publish reports and comments on racial identity is clearly absurd."

I find Holme's argument confusing. He provides no argument that Bromberg was wrong in his judgement. What he does have a problem with the Racial Discrimination Act (RDA) itself because " sets a disturbingly low bar. It's very easy to cause offence, and quite plainly Bolt's columns were likely to do so; and they were all about race, colour and ethnicity."

Holmes appears to have a problem with the addition of Part 2A of the Racial Discrimination Act in 1995 because:

It creates one particular area of public life where speech is regulated by tests that simply don't apply anywhere else, and in which judges - never, for all their pontifications, friends of free speech - get to do the regulating.

Holmes' core concern, therefore, is with the law, and he flags that he wants it to be different. It is not with Bromberg's interpretation of the Racial Discrimination Act. Presumably, his concern is with the he explicit intention of the Racial Discrimination Act, which was to, prohibit the deliberate and unjustified incitement of racial hatred. It specifically targeted speech.

Do judges regulate as Holmes' claims? Can Bromberg's judgment be interpreted as regulating? Holmes makes no argument for this. What Justice Blomberg is saying is that you can criticise or say anything you want about anyone you want, unless is it clearly malicious and hurtful in respect to race. That is prohibited under the Racial Discrimination Act. That illegality is what Holmes finds problematic. Yet all that Bolt is required to do is to publish a correction.

Holmes' solution? Move away from legislative controls over the media and freedom of expression to media self-regulation?

| Posted by Gary Sauer-Thompson at 1:14 PM | | Comments (10)


I was suprised to hear Fran Kelly on ABC's Radio National Breakfast taking the absolutist free speech position re the Bolt case rather than asking what kind of free speech is worth protecting.

The media, it would seem, should not be subject to the checks and balances that are built into Australian democracy to protect the public interest.

News Ltd isn't interested in liberty, democracy, or the courageous pursuit of truth at all. It runs political campaigns because it sees itself the real opposition to the Gillard Labor Government and to state Labor governments. Its journalism is part of a political campaign.

We had Manne's Quarterly Essay on crap in The Australian, now this on crap in Bolt's columns. Hopefully it's the start of a trend.

Once again... the high-profile, well-connected, middle-class white man is portrayed as the victim. It's sad, oh so sad!

"...protected species"... indeed.

How did it come to this????

The Press Council is not a regulator. It is a complaints board hearing complaints from the subjects of news articles. It is a pet of Big Media.

We do not have a regulator of the press who strikes off the dad, incompetent or corrupt journalists who do harm from a register when they breach regulations in their code of conduct.

Can you imagine the press agreeing to journalists requiring a licence to practice their craft?

For Miranda Devine:

the Bolt case and the swarm of Left-wing lawyers who have urged it on, acting pro bono or commenting approvingly from the sidelines, are all part of an illiberal movement in Australia to crush dissent.

The evidence? Why the media inquiry the Gillard Government has announced on the back of the British phone hacking scandal.

Anyone who tries to argue that the judge's decision was all about freedom of speech.... should be put in a chaff bag, and dropped far out at sea.

In the Australian Mark Day that the Finkelstein inquiry into the media in Australia has sent a clear signal that it is most concerned with tightening regulation on print media. He says that there is

the need for us all to keep a clear eye and level head as we pull apart the entrails of the media industry. There is nothing that can be said in defence of the phone hackers but there is much that can be said in favour of a strong, independent media that stands as the public's defender.

The News Ltd papers are hardly a good example of a a strong, independent media that stands as the public's defender.

Day goes on to remark that We talk of a free press, but in fact it is anything but free:

Journalists and publishers must find their way through a minefield of legal restraints on what they can say, ranging from defamation to the Racial Discrimination Act, as the Bolt case attests. The last thing we need is new restrictions....we must not lose sight of the benefits a free press brings society as it lifts the lid on government secrets, corporate and public corruption and shines a light in places where crooks, crims and politicians would prefer darkness.

He does refer to the fiercely partisan political environment causing the loss of trust in the media but does not link to the partisan political campaigns waged by News Ltd.

News Ltd stands for darkness not shining light on darkness.

News Ltd's political "campaigns" are an example of allowing ideology to trump truth.

When I'm at work, more often than not I catch a glimpse of the Daily Terrorgraph front page.

I don't know what annoys me more... that the disgusting Murdoch rag assumes that it's readers are a bunch of imbeciles, or that it is absolutely right!