Those in doubt that the Andrew Bolt case is about free speech need only think about the contortions of logic necessary to dismissing the proposition that it is about free speech.

On his blog, my friend Mark Bahnisch says that “free speech is not at issue here” before observing that “[f]ree speech, as the judgment in fact indicates, must be speech that is accountable to truth”.  He goes on to draw a distinction between “free speech” and “freedom of expression” before saying “[f]ree speech ought to be both in service to the truth, and oriented to its discovery”.

Dr Anita Heiss, one of the applicants in the case, said something similar in her statement following the result.  She adopted these words of another writer, Dr Rosie Scott:

“Free speech is the cornerstone of genuine democracy, but when writers publish disinformation dressed up as fact, lies as truth, slander as objective evaluation and call it free speech, they are devaluing its very essence and betraying all those who’ve fought for it.”

Another of the applicants, Pat Eatock has said that it is not about freedom of speech but about professionalism.

All of these things ignore the simple fact that the people who sued Bolt sued him because they were offended by what he said and they reckoned that he should not have been allowed to say it.  There were reasons behind why they thought that he should not have been allowed to say it, but ultimately they wanted him punished so as to make other people stop and think before they say something offensive.

There are, of course, all sorts of limitations on freedom of speech in particular, and freedom of expression (a superset of speech) in general.  Defamation is the one most commonly thrown around, but there are others.  Sedition is an offence.  So is incitement to violence.  Courts can prohibit publication of proceedings where the interests of justice demand it.  In commerce, misleading and deceptive conduct is prohibited.  There are all sorts of circumstances in which disclosure of information is prohibited.

The thing is, generally laws that impinge on freedom of expression are drawn narrowly; not so with section 18C of the Racial Discrimination Act.  All that need be demonstrated is that a person or a group of people is reasonably likely to be offended by conduct undertaken in public.  If you sit in a café and take the Palestinians’ side in an argument with a friend about the conflict with Israel, the chances are that a large section of the Jewish population would be offended by your remarks.  You would be liable unless you could demonstrate that you were acting reasonably, in good faith, and pursuing the argument “for a genuine purpose in the public interest”.

Of course, you may be able to demonstrate all of that, but you would have to go to Court to do it.  It isn’t free speech if you have to litigate to find out whether you’re allowed to say it.

Staying with that example, compare two possible scenarios.  Imagine two people taking exactly the same stance: defence of the Palestinian position in the conflict with Israel.  One is taking the position because he has thought long and hard about it, has read up on the conflict and has come to the view that the Israeli position is unreasonable.  The other is merely an anti-Semite who would always take sides against the Jews and has no reasoned basis for his position.  The two of them could say exactly the same thing (eg: “The Jews are murdering innocent Arabs”).  One of them would have a decent case for saying that he was acting reasonably and in good faith.  The other would not, because he was acting on nothing more than his prejudice.  For saying the same thing, in the same place, in the same tone, one could be punished under this legislation and the other be left alone.

That outcome is, frankly, bizarre.  It has no analogue in defamation law.  If you’re going to avoid liability for defamation on the basis of reasonableness of your comments, generally you will have to give the audience the facts as well as your view so that members of the audience can make up their own minds based on the facts.

The outcome is all the more bizarre for the fact that in either circumstance, the person or class will be just as offended.

Things get scarier.  Despite Mark Bahnisch’s careful distinction between freedom of expression and freedom of speech, it is clear that section 18C is meant to extend to freedom of expression, for example, through art.  So much is clear from section 18D which creates an exemption, inter alia, for “anything said or done reasonably and in good faith … in the performance, exhibition or distribution of an artistic work”.  A painting can be a basis for liability; so can a sculpture; so can a song.

What if Andre Serrano had taken a photograph of an Aboriginal artifact dipped in urine instead of a crucifix?  What would be his case for saying he acted reasonably in exhibiting the work?  Wouldn’t that require a judgment as to the inherent worth of the work as a precursor to judging whether it is reasonable to put it on display? Is the magnitude of the offence likely to be caused something to be taken into account in determining the reasonableness of the expression?  If so, how is that reliably to be judged before the performance?

None of this is to say that Andrew Bolt is to be excused for some sloppy journalism.  It is apparent that he failed to check facts.  In the course of things, he defamed some people.  Indeed, it is plain that the real complaint of most of the applicants is that they were defamed.  There was a perfectly good remedy at law without the necessity for this rather scary statutory remedy.