In this blog post I want to argue that the Bolt verdict is a problematic “victory” against the right-wing pundit and the Right more generally. Without wanting to diminish abhorrent and manifestly racist character of Bolt’s attack on “fair-skinned” Aboriginal people, I think that any celebration of the result by the Left is premature and reflects a largely uncritical view of the state and legal system. In that respect, we can say that the one bright aspect to the decision is that we can say that Bolt was so dishonest, misleading and crudely racist that even the Federal Court found against him. But it is hard to say more.
Not only will the result provoke an avalanche of unjustified right-wing hysteria about “rights” and “freedoms” in which the Left and anti-racists will be implicated as censorious and repressive, the legal strategy (as pursued) effectively reflects the political disarming of the Left in the face of really existing social power structures. It strengthens passive reliance on elite institutions of domination and oppression to act on behalf of the oppressed, even though its intention was to strike a blow against such institutional power.
This is the kind of blog post where if you don’t state a few things up front you get accused of all manner of crimes, so let me get some stuff out of the way first.
Firstly, I think the Indigenous activists who were witnesses against Bolt took the case up for entirely just and proper reasons. I know two of them and they are not members of some kind of out-of-touch bureaucratic elite, but tireless advocates and activists with an overriding commitment to profound social justice outcomes and self-determination for their people. In taking their action they have had the support of wider layers of activists and community members rightly appalled by Bolt’s slurs, which were not just an offence to Indigenous people but form an ideological support for material oppression.
I also think Andrew Bolt is probably the most dangerous right-wing ideologue currently operating in the mainstream media, and that it would be better if his ability to access multiple outlets to proselytise his views were seriously circumscribed (or, better yet, obliterated). The Federal Court’s finding that he seriously misrepresented facts in the service of his racist ideological argument is a significant recognition of what many have argued is central to his modus operandi.
I understand the verdict combines two aspects: (1) That Bolt fell short of a basic standard of verifiable fact regarding the racial identification of the Indigenous people he criticised. This is best expressed in paragraph 388 of the judgement as, “The public deserve to be protected against irresponsible journalism.” (2) That there is “the [racist] manner in which that subject manner was dealt with” by Bolt. On the latter point the judge made clear that the Racial Discrimination Act (RDA), especially since the addition of Part IIA in 1995, such racism doesn’t have to meet the narrow test of whether it was directed at promoting “racial hatred”:
Part IIA has a broader field of operation. Infused by the values of human dignity and equality, the objectives of Part IIA extend to promoting racial tolerance and protecting against the dissemination of racial prejudice. [From paragraph 13 of the Summary]
Finally, I am uninterested in notions of absolute rights of free speech or journalistic prerogative. Unlike some who seek to retail their crude and debased rewritings of key Enlightenment thinkers (the miserable crew at Spiked spring to mind), I recognise that rights do not exist in the ether to be bestowed upon humans but are instead enabled and limited by concrete social practices. The mainstream discourse of individual rights in the neoliberal era is not just mostly observed in the breach, it has masked a sharpening of social antagonisms. Bolt’s “rights” have always been and remain greater than those of his targets because of his position of power, a fact that talk of “free speech” is designed to mask.
The antinomies of the legal strategy
Firstly, on the question of journalistic standards and “truth” there is a worrying enthusiasm for having the state settle such questions. Margaret Simons was correct to point out that the idea the “public deserve to be protected against irresponsible journalism” by the courts is a very dangerous one, although she invited a torrent of dissent from Crikey readers in the comments and the next day. But it is one thing to recognise the rotten state of the news media, quite another to believe that the necessary response is regulation by the courts. It is also quite easy to imagine courts having a quite different interpretation of what is verifiable fact or responsible journalism in other cases (e.g. if the plaintiffs were less prominent or Bolt less obvious in his mendacity) or in a different historical conjuncture where meting out a certain kind of “justice” means relaxing the usual evidentiary and procedural rules (e.g. the behaviour of courts after the UK riots).
Secondly, the RDA’s definitions of racism and offence are very broad and open to being used against the Left and oppressed people themselves. One of the things that the law doesn’t theorise explicitly is historical oppression. Rather, it sets up universal and eternal principles of “human dignity and equality” in terms of race, divorced of the political and social specificity of racist practices and power structures. Given the recent accusations of “anti-semitism” against supporters of the BDS campaign, it seems likely that the RDA is one avenue the Right could use to undermine pro-Palestinian writing and activism. Lest people think this is fanciful, one look at what has been happening in Canada regarding official government policy on racial vilification should give pause for thought.
Thirdly, there’s the question of Left strategy in terms of agency. There is a difference between demanding recognition and justice from the state through self-activity, and relying on the state to deliver it from above. While there is understandable and widespread support for the complainants, there is also little evidence that the court-centered strategy has been linked to building a serious activist campaign outside the courts. Once again, this is not to rob the complainants of the justice and legality of their claims against Bolt, but it speaks to the weakness of the broader Left in the current conjuncture. And it is not to argue that a win in the courts can have no positive impact on struggles on the ground, but that in this case such positive effects come laced with ideological deference to state structures as enablers of recognition and justice.
Finally, it is odd when people on the Left write of this as if it were something other than a rare and unusual state decision in our favour. It will not (and cannot) portend a shift from the state’s general pattern of finding for the oppressors against the oppressed. In some senses the relief and euphoria that has greeted the decision is a marker of how isolated it is. It is also ironic that while a sickening campaign of oppression against Aboriginal people is being carried out by the Australian state in the Northern Territory, this verdict is seen as something other than a sop thrown to suggest things aren’t so bad after all. Any clear view of the situation tells us that even a thousand Bolt verdicts would not salve the rivers of pain being inflicted on Indigenous people by the ruling elite. Today.
The state: New friend or old enemy?
Mark Bahnisch calls Australian racism a “truthless discourse”. In actuality racism is deeply grounded in material facts, just not the essentialist ones favoured by the bigots. Rather, its truth lies in the complex of racist social practices. And the most powerful social institution capable of making racial division, discrimination and oppression a reality is the state. As Jacques Ranciere has argued, it is not that the state has failed in its duty to protect oppressed minorities from oppression, but that it is the force providing rationality to that oppression.
To create an alternative, anti-racist “truth” it is not enough to win a battle of ideas in the abstract or in a courtroom, but to struggle to change the social set-up, at least in part challenging the law itself. In this sense, the RDA is the residuum of a past era of mass anti-racist struggle, a legalistic shadow of living social practices that challenged centuries of oppression, distorted by the baleful influence of identity politics. But it is not the same thing as those practices, and certainly not part of the social practices of the oppressed.
This is not to say that the Left must somehow simply vacate the field of politics in relation to the state. Such a manoeuvre is possible only in theory. But the mainstream Left has found itself sufficiently weak and defensive that it too often mistakes the question of wringing concessions from the state with that of the desire to strengthen the state to act on its behalf. This can be seen with the growing calls for tough state regulation of the mainstream media, exemplified by Bob Brown’s campaign against News Limited. To imagine that such regulation would be used consistently against the right-wing campaigns run by The Australian is naïve at best. It mistakenly treats politics as divorced from real social interests, as a factional power play within the political elite rather than the expression of deeper antagonisms.
Andrew Bolt is just one reason there is so little trust in the mainstream media in Australia today. But the media is but one of a series of social institutions that has come under increased questioning in recent times. The political class has suffered just as seriously, constantly searching for ways to regain authority lost as its social base has deserted it. The collapse has been most spectacular for the official Left, but such problems bubble beneath the surface for the Right also.
This verdict unfortunately creates a space for the Right to (falsely) claim it is against the unwarranted incursion of state power into people’s lives while simultaneously backing much more destructive state action against Indigenous people. As the global crisis deepens, states will become increasingly assertive in their use of coercive measures to enforce the interests of the ruling elites. When they come after their opponents they will use all the powers they have at their disposal, including those that carry a “progressive” gloss.
Rather than focusing on legislation and judicial recourse, the Left needs to start thinking about how we create facts on the ground that will delegitimise and sideline the likes of Bolt. How can we change the editorial policies of the major media outlets from below, to force social change and accompanying shifts in the terms of debate? Such pressure must come not just from outside the media, but be part of the struggle of media workers against their employers. For too long, too many dedicated, honest journalists — those who want to speak truth to power — have been hamstrung by their bosses’ editorial and business prerogatives. Change can only be won through self-activity, by forcing governments and media organisations to cede their control — a struggle most vividly seen in Egypt today.
These are policies that must be enacted by people themselves, as real democracy demands ordinary people putting their minds and bodies on the line. We should not kid ourselves that laws that gives the courts power to suppress journalism, arbitrate as to what acceptable “facts” are, and use abstract legal notions of racism to silence dissent won’t be potential facets of the elite backlash to such struggles.