The real injury is to free speech

MANY words have been written about the Federal Court finding that Andrew Bolt contravened section 18C of the Racial Discrimination Act. And many more words still need to be written. These issues are not passing curiosities. They should not be lost to a fast-moving news cycle.

Last weekend, the Herald Sun ran the first of two corrective notices it is required by the Federal Court to publish. Like the decision censoring Bolt, the court-drafted and mandated notices are serious blemishes on Australia's democracy. These laws must be abolished. However, the bigger problem, one not so readily reformed, is the pusillanimous treatment of free speech by so many on the Left.

A few years ago I found myself sitting on the same side as The Sydney Morning Herald's David Marr during an IQ2 debate supporting the proposition that free speech must include the right to offend. Marr delivered a stellar defence of free speech. Alas, free speech is not some theoretical construct you defend just to entertain an audience. If you genuinely support free speech, you also get down in the trenches to defend those people with whom you disagree: people such as Bolt.

Disappointingly, though predictably, Marr has written with far too much salivation about the Bolt case. Indeed, it is now clear that Marr does not deserve to be sitting on the side of free speech. Instead of high doses of schadenfreude celebrating the silencing of a conservative, there ought to be full-throttle outrage at the Federal Court decision against Bolt.

There ought to be outrage that feeling insulted, offended, humiliated or intimidated can censor free speech. Instead of pointing out that these hopelessly subjective tests have no rightful place in the law, Marr opted for cute distinctions between feeling offended or insulted and feeling humiliated or intimidated.

Teasingly, he wrote last week that the anti-vilification provisions of the RDA were drafted too broadly: "Vigorous public discussion in a free society is impossible without causing insult and offence." He's right. But then he said speech that made someone feel humiliated or intimidated should be censored. "There are limits," he concluded.

Yes, there are limits to free speech. If errors of fact are made, that is a legitimate complaint and corrections should be duly published. If defamation has occurred, that too is a valid claim and redress is available. But none of that justifies using highly subjective laws as political weapons to shut down views you detest. And quibbling over which feelings the law ought to cover is not a genuine defence of free speech. Hurt feelings ought to have no role in censoring free speech. Yet you can see why many on the Left support laws that rely on subjective feelings, not objective findings.

If you tend to fill your arguments with nice-sounding emotions and feelings rather than cool-headed analysis of consequences, you are likelier to back anti-vilification laws that are premised on the same emotional raison d'etre. In fact, the subjective nature of these feelings-based laws suits the Left because, like their own arguments, they provide a blunt, unthinking weapon to strike down your opponents.

To be sure, laws often involve ambiguous language and require subjective reasoning from judges. But the more ambiguous and subjective we make the laws, the more we are subjected to the rule of judges, not law.

There ought to be outrage that a judge decided to play editor and ruled against Bolt for not being sufficiently polite. Judge Mordecai Bromberg entered Big Brother territory when he picked apart Bolt's articles on the basis that his language was "often strong and emphatic' that there is "a liberal use of mockery and sarcasm" and a "derisive tone".

Once again, most on the Left stayed silent. And, again, it's easy to see why. Over the past decade or so, many so-called progressives have framed debates as a series of wars. Think of the history wars. Those who long enjoyed a monopoly over the teaching of a black-armband view of Australian history treated any challenge to their views as a declaration of war. Stuart Macintyre wrote an entire book about the Right's war-like tone in challenging the orthodoxy. The culture wars were treated in the same manner.

Academic Robert Manne obsesses about the "attack dogs on the Right". People such as Manne have grown so used to going unchallenged that they fail to spot a healthy and overdue exchange of views. Sure, debate is sometimes heated. But, then again, the right to free speech is not some nanny-state edict that grants a right to express only genteel speech.

There ought to be outrage, too, that a judge gets to call the shots about free speech in the way Justice Bromberg did. But, once again, it's easy to see why so many on the Left agree with judge-led incursions into free speech. So often so-called progressives prefer rule by elites. They like the idea that like-minded judges will stamp their agenda via judicial fiat on the less intelligent masses.

Hence they support a Human Rights Act where a small group of unelected judges define ambiguous sounding "rights". These "human rights" champions view with suspicion old-fashioned democracy where the masses are granted the right to decide the parameters of important issues.

To his credit, Media Watch's Jonathan Holmes is about the only member of the Left to deliver a genuine defence of free speech. Few others stepped up to defend Bolt in this way. And maybe the Left's lily-livered approach to free speech is best explained by this distinction. Most people on the conservative side of politics may believe those on the Left are wrong on the important issues but fully support their right to express their views. The attitude is "go ahead, do your best at explaining your position and just watch us counter it with better arguments".

Showing their illiberal tendencies, many on the Left view their ideological opponents in different terms. Opponents are not just wrong but evil. And evil views have no place in a civil society. Seeing conspiracies around every corner, they prefer silencing dissent to answering it. Whether it's about supporting strong borders or challenging the victimhood focus of indigenous policies, opponents are assumed to have bad motives: read racism and xenophobia. And those with bad motives don't deserve an airing. Hence the outpouring of left-wing vengeance against Bolt when the Federal Court found against his right to air his views. That Bolt's views are far likelier to reflect mainstream Australia makes no difference to them.

At the heart of the Left's disdain for people such as Bolt is an even deeper disdain for mainstream Australians who, wisely, have failed to get with the progressive program.