"But – and this is the disturbing part – the judge goes on to find (in par 424):http://www.abc.net.au/news/2011-09-29/holmes-bolt-bromberg-and-a-profoundly-disturbing-judgment/3038156
"Even if I had been satisfied that the section 18C conduct was capable of being fair comment, I would not have been satisfied that it was said or done by Mr Bolt reasonably and in good faith."
Defamation law doesn't require fair comment to be reasonable, as we've seen. It doesn't require it to be 'in good faith'. But the exemptions listed in section 18D of the Racial Discrimination Act, including fair comment, only apply to "anything said or done reasonably and in good faith".
And Justice Bromberg makes it clear that if you write something that has a tendency to offend on the grounds of race, but you want it to be considered reasonable and in good faith, you won't necessarily get away with opinions that would in defamation law be covered by the fair comment defence – opinions that are extreme, or illogical, or which "reasonable people might find abhorrent".
On the contrary, says Justice Bromberg (in par 425), Andrew Bolt failed the test of reasonableness and good faith because "insufficient care and diligence was taken to minimise the offence, insult, humiliation and intimidation suffered by the people likely to be affected by the conduct and insufficient care and diligence was applied to guard against the offensive conduct reinforcing, encouraging or emboldening racial prejudice."
And he specifically mentions, not just the wrong facts, but "the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides.""
I firmly disagree with Holmes' concerns on this issue. He seems to think that free speech is a fundamental right, but in fact it is an instrumental right. We desire free speech because society prospers from it, and because no true democracy is possible without it. It follows that no restriction on speech which is not inimical to these purposes should be automatically ruled out (although they should not exist without significant justification). In fact, the "right" to deliberately distort facts, to write in a hectoring and abusive tone and to deliberately offend are not necessary for the good functioning of democracy and the spread of ideas. Rather, they are inimical to it. Therefore any law that has the effect of preventing deliberate distortion and offensive tone for another reason does not impinge upon the right of free speech, properly construed.
Holmes' defense of a broader definition of free speech is particularly weak on this point. He writes,
"In other words, if you want the protection of section 18D of the act when writing about race in a way that's likely to offend, you need to be polite, not derisive, calm and moderate rather than provocative and inflammatory, and you must eschew 'gratuitous asides'.
If you did all that, of course, you'd be unlikely to offend anyone in the first place. So there doesn't seem much point in section 18D. And you'd also struggle to express your view in a way that would attract readers in a popular newspaper."
Well, the right of people to make money by abusive disinformation is of even less concern for those interested in ensuring the propagation of ideas, and the health of democracy. Commercial publication of inflammatory disinformation as a means to make a profit is probably the second greatest threat to the health of democracy, and given global warming, the health of the world, current today. The only thing more inimical to it, IMO, is allowing non citizens (including corporations and NGOs) to donate to political campaigns.
The substitution of commercial values for journalistic values implicit in Holmes' defense is a canker on society, and if the racial discrimination act restricts that substitution, then we need more of it, not less.
Further discussion can be found at Deltoid.
Edited to correct error: 5:17pm, 1/10/11