The Bolt trial has taught us that we need to start calling freedom of expression what it really is: my assumed right to make you feel unwelcome on grounds of your race, your culture, and your religion. Too many of the media responses to the Bolt decision have been shocking in their shallowness and vile in their treatment of issues. We no longer have a polity capable of critically analysing freedom of expression.
The polemics in support of Bolt are not motivated by a philosophical interest in liberty, democracy, or the courageous pursuit of truth; it’s insecurities we are watching unfold. It is the cold dread that media figures might one day have to ask themselves: "If I need to hide behind flimsy rhetoric about rights in order to justify my rubbish treatment of others, is my work worthwhile? Am I, when we get right down to it, a worthwhile person?"
This anxiety is crippling and it destroys the capacity to think objectively and rationally about the limits of free expression. In April, I argued that the media had an interest in protecting all forms of free expression because so much of their business model consists of stirring controversy with ludicrous and outrageous slurs. If freedom of expression is restricted in any way, that business model becomes less viable.
The recent downpour of angsty tears in support of Bolt shows that I did not go far enough: the media is so self-interested and self-absorbed that it can no longer assess its value to society. It considers itself to be a vital part of a healthy democracy, but refuses to participate in the checks and balances process to which all other vital parts of a healthy democracy submit. As such, it is capable of little more than absolutist slogans: "All speech should be protected speech, regardless of the consequences."
Eatock v Bolt, at its heart, asked the question which the media has proven incapable of answering: "What speech is worth protecting?"
Section 18C of the Racial Discrimination Act empowers minorities, saying "We as a society think that you should be able to enjoy all the dignities and privileges every other person can enjoy and take for granted. You should not have to tolerate or have to indulge bigots who threaten your ability to enjoy those dignities."
At the same time, Section 18D of the Act says that there will be situations where other considerations will compete with rights bestowed under 18C. 18D says that 18C doesn’t protect minorities against fair and reasonable commentary: "Sometimes, issues will be discussed which will offend you and might even make you feel unwelcome in society, but we as a society feel that it is important that some good faith and reasonable discussions in the public interest are protected."
It is the tension between these two sections which promotes social inclusiveness and the genuine, fearless pursuit of truth. I can’t just attack people for giggles and link bait: I need to have a good reason to do so.
In the end, Bolt was unable to demonstrate to the court that what he was saying was in the public interest. When Bolt’s defenders crawl over themselves to speak out on his behalf, they are saying that we ought to protect attacks on members of our community which were found not to be in the public interest.
You would never guess, from the response to Eatock v Bolt, that the case considered a wide range of issues other than freedom of expression. There were questions about Aboriginal identity and how the law, which is far too often a very blunt instrument, has to employ subtlety and nuance in order to grapple with it and associated issues.
There were even fundamental questions about how the legal world is responding to the shift from race as a biological issue to a socio-cultural one: the idea of racial difference as a quantum of genes has been replaced by a more fluid, dynamic interaction of self-identification and community-identification. If Justice Bromberg were trying to create a precedent prohibiting questioning racial and ethnic identity, it seems odd to hide that precedent in a judgement which explores the issue at length and in beautiful clarity.
One of the most confronting and disconcerting aspects of the case wasn’t part of Bromberg’s decision, but was an argument raised by Bolt. According to Bromberg, Bolt claimed that "persons of mixed genealogy, where that genealogy includes Aboriginality, identify as Aboriginal persons, [but]could instead identify with another race or races, or assert no racial identity at all". He says that identifying as Aboriginal, rather than as white, "emphasises racial differences, rather than common humanity".
In short, identifying as not-white when you have the opportunity to identify as white is to emphasise racial difference, and emphasising racial difference is bad. Let us put to one side the question of whether a person wilfully "chooses" to identify as one race or another or even whether these "choices" are mutually exclusive. Let us instead look at the extremely troubling implications of Bolt’s arguments.
First, Bolt is implying that "whiteness" is the default position for humankind and that being white is not asserting a racial identity. So, following this line, asserting a racial identity is defined as asserting a non-white racial identity. If you’re white, you’re fine; if you’re not white, you should claim that you are. Failure to comply with this maxim will result in a rejection of common (a.k.a. white) humanity.
"Mixed-race" people are therefore actually white but carry an extra little bit of difference. This difference ought to be ignored and suppressed in order to promote a common/white humanity. It is a troubling and wrong-headed position: an attempt to whitewash the world and view difference as intrinsically harmful.
Second, Bolt implies that there is nothing excellent, important, or relevant about his racial identity. It probably sounds weird (and more than slightly redneckish) but I’m awfully proud of my racial and cultural history. If I am asserting the privilege to enjoy my cultural and racial history, how can I begrudge you doing the same? We encourage school children to explore their family histories in order to celebrate their racial and cultural backgrounds and to form a greater, richer picture of who they are as individuals within our society. When Bolt says that we ought not to assert racial identity for fear that we emphasise racial difference, he is saying that a part of our identities is not worth celebration and acknowledgement.
This adds up to a confusing and sad ugliness: people ought not to assert any non-white racial identity because the white racial identity is bog standard (with extra bog). It promotes cultural ignorance as a virtue and inhibits a complete understanding of ourselves in relation to our contemporary society and our social history. How this man can proclaim himself to be a conservative and to be interested in the promotion of an excellent culture is bafflingly inconsistent. Racial and cultural history are cause for celebration, not shame. Our common humanity is echoed in our differences, not muted. This is why I disagree with Bolt when he argues "we should not insist on the differences between us but focus instead on what unites us as human beings."
If we are genuinely worried about the rights and dignities of people in our communities — and the "freedom of expression" armchair champions claim they are — we can’t think of racial difference as a shameful aberration. A more complete reading of Eatock v Bolt encourages a discussion about race and racial difference, but one which is genuinely interested in cultivating a democratic and open society where everybody can enjoy the same rights and freedoms.
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