Dr. Michael Keane examines the implications of the decision in Eatock v Bolt:
Incongruity is a tool of the comedian. When something just makes no sense at all and a concept is proposed that completely lacks internal consistency we often laugh as a sort of defence mechanism to deal with information that simply does not compute. In this context it is difficult to know whether to laugh or cry at Justice Bromberg’s incongruous decision in the Andrew Bolt case. Whether we laugh or cry, we should be deeply concerned with the consequences of the judgement. Much has been written in regards to the precedent this case sets in regards to free speech. Conversely, politically-correct apologists for the judgement of the Federal Court counter that this case merely represents a sanction against an article that got certain facts wrong and was supposedly written in a sarcastic tone. However, in order to appreciate the reason that this judgement most certainly restrains legitimate political discourse it is necessary to scrutinize what is a glaring contradiction in Justice Bromberg’s justification for his decision.
The intent of this current article is not to explore the significance (or lack thereof) of the nominated factual errors in Andrew’s article, which, in the context of the extremely important political point Andrew was making, are arguably so peripheral that it is surprising that the Justice could make much of them at all. Furthermore, please Justice Bromberg, watch an episode or two of Southpark. The creators of Southpark have been amongst the great political philosophers of our age. The benefit they have brought to society is immense. However, they most certainly use sarcasm and ridicule. Sarcasm is used devastatingly to highlight their incredibly sophisticated political insights. For those not familiar with his ruling, Justice Bromberg stifles free speech on the basis that, amongst other things, Mr Bolt might have used a little sarcasm. But let’s get back to the contradictions in Justice Bromberg’s ruling.
In his summary, Bromberg writes “Finally, in dealing with the formulation of the orders to be made by the Court, I have observed that it is important that nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people.” Justice Bromberg gives this overriding disclaimer that he is not attempting to hinder legitimate political discourse. Interestingly he charges Mr Bolt with using an exculpatory disclaimer when Andrew wrote “I’m not saying any of those I’ve named chose to be Aboriginal for anything but the most heartfelt and honest of reasons. I certainly don’t accuse them of opportunism, even if full-blood Aborigines may wonder how such fair people can claim to be one of them and in some cases take black jobs.” The Judge was literally dripping with disdain for the legitimacy of Mr Bolt’s disclaimer. However, Mr Bolt’s disclaimer was entirely consistent with what he wrote. Furthermore, Mr Bolt in his writing has consistently demonstrated that he is fair, compassionate, kind, reasonable, genuine and incredibly non-racist. Contrast this to the Judge’s exculpatory device which is thoroughly inconsistent. Let’s explore.
The Judge writes “People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. [Emphasis added] Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance.” He later concludes “I have also found that the conduct was reasonably likely to have an intimidatory effect on some fair-skinned Aboriginal people and in particular young Aboriginal persons or others with vulnerability in relation to their identity.”
To give some context to Justice Bromberg’s comments, let’s use the example of affirmative action. It is completely legitimate to be morally and politically opposed to affirmative action. One legitimate (and more likely than not enlightened) view is that affirmative action represents racial separatism par excellence. It is NOT reverse racism. It IS racism in every sense of the word. It is a leftover from the heyday of political correctness, unopposed due to intellectual cowardice of people who could and should have challenged it every step of the way.
To think that in the 21st century, official policy judges you on the colour of your skin – your race - independent of your ability or your character. So the colour of your skin is green? Sorry this position is only for people with purple skin. You’re the best person for the job, but your skin is green not purple.... sorry! Not only do many consider this philosophically utterly repugnant, many also argue that it ultimately makes the situation for the “affirmed” race even worse as it (i) causes great resentment and (ii) shifts the equilibrium of behaviour and removes incentives. These points are of course arguable. There is no ultimate right or wrong.
OK, so if you believe that affirmative action is wrong (some legal observers believe that the Supreme Court in the US is tantalizingly close to sending affirmative action to the dustbin of racist history) it is reasonable to contend that beneficiaries of this racist instrument have unfairly been advantaged due to their race; i.e. racism. So you want to change the system? If the public becomes increasingly aware of the racist underpinnings of the system they may, completely rationally, resent the patronage that beneficiaries have received. If that resentment increases, the people from the “affirmed” race may feel that their achievements are not respected. Maybe the public might start to exhibit signs of “disdain”. By definition affirmative action means that someone of the affirmed race receives a position, grant, reward or award that the individual did not receive purely on their merit.
If beneficiaries of affirmative action do feel that their achievements are denigrated by the population they might feel disinclined to accept such racist patronage. Furthermore they may be disinclined to actively oppose political movements to remove affirmative action. It is a completely reasonable, fair, rational, compassionate and enlightened objective to want to end affirmative action and therefore it is also morally decent to want to delegitimize achievements that are based on racial separatism. Maybe then, there are some situations where it is morally enlightened to want there to be “disdain or loss of esteem for so identifying”. Maybe or maybe not? That’s where the free contest of ideas comes to play.
To be sure, I’m in no way arguing that it is not legitimate to argue the merits of affirmative action. There is a rationale for affirmative action and it is perfectly legitimate to argue the case. Free speech is a wonderful thing! Now, remember that a legitimate defence to possible racial vilification is the furtherance of legitimate political discourse.
However, Justice Bromberg has unilaterally and without any justification declared that only political opinions that he believes in are allowable. Why does he even mention his beliefs about the unacceptability of “disdain”? It is irrelevant. If this case is not about, as he argues, the unlawfulness of “a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people” then his beliefs about disdain and loss of self esteem are irrelevant and should not be entered in to the Court’s record. Sometimes political correctness can just drool down, soaking shirt and robes alike. I wonder what colour shows up in a urine test when someone is chronically intoxicated with political correctness? Note the sarcasm. Yes a little sarcasm. Is that how political prisoners were tortured by the likes of the Khmer Rouge? “Right now, renounce your political beliefs or we are going to use sarcasm on you!” No, no, no not sarcasm.... I’ll do anything you want just don’t use sarcasm!”
So the question becomes, what if you want to argue that we should show peaceful disdain to people who have gotten ahead because the colour of their skin, not their talent? So not withstanding his exculpatory disclaimer, Justice Bromberg, necessarily contradicts the statement that this is not about “challenging the genuineness of the identification of a group of people”. If the CONTENT of political speech is legitimate why is it necessary to even raise such issues as the “intimidatory” effect it might have on some people.
What are the limits of this? Can an ordinary citizen, who does not possess significant financial resources, really leave him/herself open to the arbitrariness of this process (which might end up costing hundreds of thousands of dollars)? This is the insidious nature of this judgement. Is it legitimate, for example, to argue that we should reduce government funding for certain aboriginal cultural activities? Would this then belittle those activities as unnecessary and therefore lead to a loss of “self esteem?” Would it be legitimate to argue that the aboriginal culture is a failed culture and we should stop trying to artificially prop it up with inordinate amounts of government funding?
So here’s the test. If someone did want to argue that people SHOULD feel loss of self esteem for identifying with a particular group, should that person be banned by the State from arguing the case? Would Justice Bromberg have banned the Southpark episode which ridiculed Tom Cruise and people identifying with the “religion” of the Church of Scientology? I can assure you there was no holding back on the sarcasm in that episode! The overwhelming common expectation is that we can, at times, appropriately ridicule people for identifying with a particular group. Of course, Tom Cruise and the Church of Scientology do not come under the Racial Discrimination Act. But this case is about whether Mr Bolt’s comments were defensible under the construct of legitimate political discourse. Furthermore, there is a strong case that we SHOULD actively promote ridicule if people identify with certain groups. It would be a failure of moral leadership if we didn’t ridicule people who associated with NAMBLA. Who decides which associations should be allowed to be ridiculed and which shouldn’t? The Supreme Guardian of Morality, Judge Bromberg?
Judge Bromberg seeks to arbitrarily mandate that everyone agrees with him. That is unacceptable. This judgement was an absolute shocker on so many levels. If a surgeon had botched a case so badly it would not be unexpected to be sued. If an AFL umpire made such a woeful interpretation of the rules s/he would not be in the big league for long.
Ironically, Bromberg’s judgment has probably increased the total amount of intimidation and loss of self esteem in the society. The decision has caused enormous intimidation to those who are left wondering whether their political opinions will be rendered unacceptable by the Supreme Council of Political Correctness. This most certainly will make people feel intimidated into not expressing legitimate political positions. The devastating feelings of disenchantment that many feel at the thought that their society is no longer one where we tolerant free political discourse is arguably far more potent than any distress caused to the plaintiffs in the case at hand.
Judge Bromberg declares in regards to Mr Bolt’s writings that “There is a liberal use of sarcasm and mockery. Language of that kind has a heightened capacity to convey implications beyond the literal meaning of the words utilised. It is language which invites the reader to not only read the lines, but to also read between the lines.” Once again, Justice Bromberg demonstrates the disingenuousness of his exculpatory device that this is not about limiting free speech. What does it mean if language conveys implications beyond the literal meaning of the words? The final implications are still implications? You should still be able to argue those same implications. So it shouldn’t matter how people arrive at the same conclusion; whether it be from reading between the lines or whether it is overt and in your face. In other words, the Judge himself is attempting to “convey implications beyond the literal meaning of the words utilised”. And the clear implication is that the CONTENT (not the just the form) of the argument is not allowable if it doesn’t accord with his view of the world. This is a clear contradiction to his exculpatory statement that this is not about prohibiting challenges to “the genuineness of the identification of a group of people.” If you wanted to challenge the “genuineness of the identification of a group of people” and you did it by using the technique of having people read between the lines, then so be it. That is ultimately what you are arguing.
Bromberg goes into a facile, feeble, self serving and profoundly masturbatory outline of the legal concepts of free speech as he understands them. At the end of the day the question has to be asked, would Mr Bolt be allowed to say what he said if he wrote it in the United States of America? If yes, then all Justice Bromberg’s ramblings about free speech are worthless. We obviously don’t have the freedom to engage in legitimate political discourse in Australia. It’s not about being defamatory to the plaintiffs. If so it would be sorted in a defamation case.
Judge Bromberg, your decision has now brought untold intimidation to people who want to legitimately challenge the politically-correct ideas you believe in. You have deprived everyone in the society of the opportunity to hear opinions we don’t necessarily agree with. I want to hear different viewpoints, not have them banned. The contradictions in his decision have lead to a set of precedents that, to borrow a phrase from a Court in the US, are breathtaking in their expansive scope.
Dr. Michael Keane is an anaesthetist and researcher with interests in illicit drug use and drug policy, bioethics and public health. He is also a lecturer in public health at Monash University, and a member of the Liberal Democratic Party.
