FOR AND AGAINST: Does the right to freedom of speech give you the freedom to racially vilify?


 Originally published in Tracker Magazine. 


The Andrew Bolt case has opened up a heated debate about whether his right to freedom of speech should over-ride the right of people to be protected from racial vilification.

Last year William Farkas passed away. He had survived the death marches when he was 24, weighing just 24 kilograms, and survived Auschwitz.

His gravestone includes a commemoration of his father, murdered in Auschwitz in 1944.

My grandmother also survived the Holocaust.

Almost everyone else in her family was exterminated.

I find Holocaust denial deeply hurtful and distressing.

I find it difficult to write dispassionately about the case of Frederick Toben.

After being jailed for Holocaust denial writings, he released a book called Arbeit Macht Frei – the slogan placed on the gates to Auschwitz. (It translates into English as: work liberates)

This is the concentration camp my grandmother survived, and which so many of my relatives did not.

It is hard to imagine how Toben could calculate being more grossly and outrageously offensive.

Yet for all the hurt he causes me, and perhaps every other Jewish person in Australia, I have repeatedly written that his imprisonment is unacceptable.

He should have the right to express his opinions, however vile, depraved, or ignorant they may be.

I do not enjoy defending the freedom of speech of someone like Toben.

However, freedom of speech doesn’t mean the right to say uncontroversial things that people like.

The only views that ever face suppression are those that are considered outrageous, disgusting, depraved and vile.

It is when people say the most disgusting and outrageous things that it is most important to defend their right to do so. Anyone who supports freedom of speech, except when that speech is outrageous and offensive, does not support freedom of speech at all.

As Noam Chomsky has said, it’s a “poor service to the memory of the victims of the holocaust to adopt a central doctrine of their murderers.”
Andrew Bolt has accused me of “hate preaching”.

I documented some of the (many) outrageous things Bolt has said at ABC Drum.

However, as H.L. Mencken noted, people who defend human freedom always end up spending “most of [their] time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all”.

Andrew Bolt does not deserve to have, perhaps, the most important civil liberty squandered on him.

For those who think freedom of speech isn’t so valuable, I can’t prove otherwise here.

I simply pose some questions: if you let the State decide what freedom of opinion should be allowed, why do you think that that it will be a friend of Indigenous Australians?

It is never going to be the views of vulnerable minorities that determine what is and is not considered intolerably offensive and outrageous to the community.

If you want to let the courts decide what we can and can’t say, why do you expect enlightened judges to rule in your favour?
Of course.

But why trust a rich white judge to be more like Michael Kirby, and less like Keith Windschuttle?

It has been shown that we jail Aboriginal men at a rate far higher than Apartheid South Africa jailed black citizens.

How much faith can you have in the courts?

Remember that it was a Chief Justice of the Supreme Court of the Northern Territory who gave glowing character references to the 5 white men who terrorised Aboriginal campers with their car and gun, before beating Kwementyaye Ryder to death.

How helpful will the courts be, when a Prime Minister openly advocates racism (the NT Intervention)?

And remember this: what if Bolt wins?

Would that prove Bolt raised legitimate issues? Or do you think it’s irrelevant: that we should not give the State the right to determine which opinions deserve public expression and which ones don’t, which ones are disgusting and racist, and which ones are not.

This is a political struggle. Sadly, there are no shortcuts.

• Michael Brull is studying a Juris Doctor at UNSW. He has been published in the Indigenous Law Bulletin, National Times, ABC Drum, Overland and elsewhere. He has been accused in Parliament of anti-Semitism for defending the rights of Palestinians, and suspects the laws he’s defending here may one day be used against him.


Herald Sun columnist Andrew Bolt.


As a light-skinned Aboriginal person, I often hear that old adage, of ‘you don’t look Aboriginal’, when people find out the details of my racial background.

It’s such an outdated response that it is beginning to rival the detested, but oft-used term, “I’m not a racist but….”

It’s a viewpoint that light-skinned Aboriginal people have to deal with regularly. And it angers me that the answers to questions like why we identify, why we take pride in our heritage, and why racial terms like “full blood”
and “half caste” are buried in the past, are not explained and understood widely throughout the media.

Instead, the viewpoints of people like Andrew Bolt are splashed across his twice-weekly column in Australia’s most widely read newspaper, plus his heavily trafficked blog.

Bolt is also the recent beneficiary of a television show, another vehicle in which to showcase his opinions, as if he did not have enough media oxygen already.

Both sides of this For and Against believe that Bolt’s views are disgusting and outdated.

But I could never defend his right to express them, and I strongly support the nine plaintiffs in the current legal case against him.

I understand we must respect everyone’s right to freedom of speech, even if viewpoints are radically different from our own. But this right does subsume the right to racially vilify.
It does not give a person the right to distribute lies that are damaging to a societal group.

Bolt’s accusation that the nine plaintiffs were using dubious claims of Aboriginality to gain career and financial benefits were, and are, false and highly defamatory.

Freedom of speech has never been a constitutional right in Australia.

What we have is an implied constitutional right to freedom of political expression, which has been a precedent set through the courts.

That is not to say we don’t informally support freedom of speech. But this freedom must be balanced against other rights. And this already happens.

We already have limits on freedom of speech that are largely uncontested by the general population.

As former Attorney General, and architect of the Racial Discrimination Act, Michael Lavarch, pointed out in The Australian newspaper recently, one limit of freedom of speech is censorship in areas of law like distributing objectionable material, like child pornography.

The reason we do not object to this breach of a freedom of speech is because the results of limiting it are far less damaging than if we didn’t have it.

That is why we have a Racial Discrimination Act, the piece of legislation now being used in the Bolt case.

Under the Racial Hatred provision of the legislation it states that:

“It is unlawful for a person to do an act, otherwise than in private, if:
The act is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people, and
The act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group”.

The comments aired by Bolt definitely offended, insulted and humiliated the plaintiffs in this case.

And the act was definitely directed towards a specific race – Aboriginal Australians.

Of course there are certain exemptions to this.

The media, for instance, are allowed to legitimately report acts that are in the public interest. I would argue Bolt’s comments were not in the public interest.

They were utterly inaccurate and propelled by an outdated view of racial identity. It was later posted on a blog designed to incite vitriol within its comment section.

What possible public interest, I would ask, did he have in placing their photos on the site and inviting all and sundry to comment on their appearance and Aboriginality?

This is surely a personal issue that no-one other than the individuals have any role in determining.

The potential for damage to the careers and reputations of the prominent Aboriginal Australians profiled by Bolt is obvious.

This case is important.

It allows Aboriginal Australians to make their views known on the complex issue of racial identity, and have it reported extensively in the media.

This is more than welcome given how often conservative commentators like Bolt think they can have the debate, and leave us out of it.

Even if the plaintiffs lose this case, it will not be a validation of Bolt’s views.

It’s an example of how we can challenge common day racism, rather than idly sitting around and allowing the views of Bolt and others to go unchallenged.

• Amy McQuire is a Darumbal and South Sea Islander woman from Rockhampton in Queensland. She is the editor of Tracker.


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