Really, Bolt and his editors should be breaking out the champagne. If the nine had sued in defamation, the paper might now be signing cheques for a few million dollars. The legal bills won't be cheap - the paper has been directed to pay most of the trial costs - but Bolt's ugly columns have not cost much more than a fair dose of embarrassment.
(The law) has already had a corrosive effect not just on free speech but on the Federal Court's standing. It has encouraged (Justice) Bromberg to believe he is required by law to take on the role of uber-editor, criticising words and phrases and taking it on himself to list material that Bolt should have included in his columns. Within days, the nation will be treated to a spectacle that has no place in a free society. Bromberg, using the coercive power of the state, will force the free media to publish the judge's opinion. There is a solid line of precedents to support such a course, and those precedents stretch all the way back to Berlin in the 1930s.
The anti-vilification provisions of the Racial Discrimination Act used to attack Bolt are drafted far too broadly. They outlaw speech that is merely offensive or insulting. Vigorous public discussion in a free society is impossible without causing insult and offence.... But short of abolishing these anti-vilification protections entirely, no amendment of the law would have helped the hapless Bolt. He didn't just offend and insult. Justice Bromberg found the columnist's efforts were also likely to humiliate and intimidate the fair-skinned Aborigines attacked in those columns. Bolt ticked all the boxes in the Racial Discrimination Act. And the judge clearly signalled that in his opinion the columnist had also defamed the nine by accusing them of the cynical late-life adoption of Aboriginal identity.
Those who see this as a simple debate about journalistic standards are wilfully blind to the horrific course the law is taking in this country....This issue will not go away. It will fester up to the next election, creating one more focus for the opposition to chip away at the Gillard government's emerging vulnerability on free speech. Very soon, the government will reveal its formal position on whether it believes it should change the law to encourage Australians to sue each other for breaches of privacy. Those who believe this proposal is anything but a sop to Bob Brown's hatred of the media are again wilfully blind.
The Herald Sun put out a statement after yesterday's decision: ''All Australians should have the right to express their opinions freely, even where their opinions are controversial or unpopular to some in the community.'' Absolutely correct. But surely not even in this awkward jam is Bolt's paper arguing that columnists are free to get it so comprehensively wrong when they mount ferocious attacks on people. There are limits.
Labor needs to decide where it stands on free speech. Remaining silent in the face of such erosion of a fundamental human right will send a very clear message.
The orders by Justice Bromberg include this text of the notice to be published:
On 15 April 2009, the Herald and Weekly Times Pty Ltd published in the Herald Sun newspaper an article written for publication by Andrew Bolt under the title “It’s so hip to be black”. On or about 15 and 16 April 2009, that article was also published by the Herald and Weekly Times Pty Ltd on its website, under the title “White is the new black”. On 21 August 2009, the Herald and Weekly Times Pty Ltd published a second article written for publication by Andrew Bolt in the Herald Sun newspaper under the title “White fellas in the black”. On 21 August 2009, that article was also published by the Herald and Weekly Times Pty Ltd on its website, under the title “White fellas in the black” (collectively “the Newspaper Articles”).