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| So racist even the Federal Court found against him |
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.
Caveats first
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
There are four things that disturb me about the Bolt verdict,
leaving me much less sanguine about its eventual effects than left-wing commentators
like David
Marr or Mark
Bahnisch have been.
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-centred 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 delegitimize 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.
