I confess I was looking avidly forward to the result in Eatock v Bolt, on the basis that the decision would either result in the expansion of the implied constitutional freedom of political communication in Australia, or it would result in Andrew Bolt receiving a widely publicised kicking and his followers engaging in highly entertaining championship tantrum-chucking.
Either one of these outcomes contained sufficient silver-lining to offset any negatives I could see. In the wake of the public spanking delivered to Bolt by the Federal Court, several things about the nature of free speech in this country have become clear.
Firstly, Andrew Bolt's free speech did not in fact extend to making factually innaccurate claims about pale-skinned indigenous Australians which had the effect of damaging them as a class . By the way, ragey tantrum-chuckers of the libertarian fringe, this doesn't mean that we live in less of a democracy than we did before Eatock v Bolt. A right against Bolt in such circumstances against racial vilification was only one civil option - the standard vanilla defamation proceedings would probably also have been successful.
Bolt's free speech didn't extend in this way because no one's does. It has always been limited by injunction, defamation remedies, rights to privacy and non-disclosure policy, and expanded and protected through alliance to a limited right to political information, which is derived from the notion that since we must vote, we have a right to make that decision without having access to that information hindered. That right has been extended to broadcasting material obtained of animal rights abuses while trespassing (Lenah Game Meats), prohibiting the government banning political advertising in the lead-up to an election (ACTV), or reasonable political critique (Lange). What is clear from the case law is that we're talking, with the possible exception of parliamentary privilege defences, of a situation where free speech derives from a right to be informed. It clearly runs into problems where the speech is baseless opinion misrepresented as authoritative fact.
As well as these restrictions, freedom of speech is, and has always been, a right which is correlative and accountable to other rights. It has never been unlimited. My right to photograph you in the shower and publish those photographs does not trump your right to privacy, and it shouldn't. Nor do I have an unqualified right to publish an article about someone who is not a public figure, making accusations about them without bothering to check the factual accuracy, or, knowing there is no fire, to shout 'fire' in a crowded theatre. This should not be mistaken for state censorship -there is nothing preventing me putting that speech out there in the first place save my own awareness of the consequences, legal, ethical and practical, of so doing. If one is trampled in a panicked mob trying to flee a theatre which is not in fact on fire, well, that is a consequence of having shouted 'fire'. Similarly, a group of people you have attacked in a nationally syndicated newspaper bringing a civil claim against you is a consequence of the initial decision to publish. There's a reason for the phrase 'Publish, and be damned!'.
For example, if I were to make the claim that Andrew Bolt is routinely indecently engaged with farmyard animals. This is a claim that I cannot verify based on my current experience, nor one which I am basing on an authoritative source or considerable research. I could perhaps look through some of the columns he has written, and make use of innuendo to suggest such things, but on the face of it, I am likely only to turn up enough to suggest Andrew Bolt hates PETA and has changed his mind a few times on the live animal export issue. Our defamation law works such that even if it were true, publishing would as a starting point be grounds to sue for defamation simply as something likely to impair the reputation of the ordinary reasonable person - because, again irrespective of truth- we assume everyone's reputation is good at common law. Were I able to show any of a range of defences - such as truth, genuinely/honestly held belief - or make arguments on the mitigating factors, I may still get away with publication of such vicious rumour and defeat any defamation suit that's brought.
Most major media organisations have in-house legal counsel, whose job it is to answer questions about whether publication of a particular article is likely to open the organisation up to legal liability. Often, in practical terms, the decision may come down to not 'Is this libelous?' but rather 'Is the person we are libelling likely to sue?'. In the case of Bolt, the gamble is that Bolt's abrasive style and casual bigotry sells copy, and sales of copy mean the lifeblood of advertising revenue continues to flow. If no one sues - or if they reserve their right under the Australian Press Council to file a complaint (and thus waive a right to sue), then the paper wins out by publishing anyway, even when they know it's likely to be libellous.
In this case, one more attempt by Bolt to chip away at the credibility of indigenous rights in Australia did not go unchallenged. If you're outraged there's a law saying your free speech is limited by hate speech legislation, you should probably be even more outraged about the overuse of injunctive relief in interim civil cases and the use of defamation law to shut down critique of those with the money to launch applications for injunctions with relative ease. If you're not - if you're just angry that Bolt got slapped around for making a (not particularly well-informed) point about light-skinned Aboriginal people having access to government funding and grant programs, a group who initially didn't even seek damages, simply a judgement against - then maybe you should be wondering what your free speech is worth. When someone is allowed to pump untreated sewerage and profitably sell it as Evian, the marketplace of ideas needs a rethink.
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