Free Speech and Responsibility

What are the limits to freedom of speech?
Last update:05 October 2011

The common factor? Feeble minds, inflamed by intemperate rhetoric. Giffords had reportedly expressed fears about the impact of such rhetoric.

Sarah Palin infamously targeted Giffords. Commentators like Alan Jones and Andrew Bolt profit handsomely by promoting extremist views. They commonly employ inflammatory rhetoric to do so. The threats to climate scientists are probably consequential.

When the worst happens, shouldn't the intemperate be held to account? When inflammatory rhetoric incites feeble minds to violence, who is most culpable? To me, the incited are less responsible than the inciters. Much as the weapon is less to blame than the one who wields it.

Shock jocks are a media phenomenon. They hide behind claims that they present opinions, rather than reporting news. Much of their emotive rhetoric is framed as fact and apparently accepted as such by their listeners.

I guess it comes down to where the balance lies.

We have a right to voice our views. Our exercise of that right carries responsibility for the consequences. When the worst happens, will the ones truly responsible be held to account?


In Eatock v Bolt [2011] FCA 1103 (28 September 2011), Andrew Bolt was found to have contravened the Racial Discrimination Act in two articles published in 2009. In part, the summary of findings reads:

I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language.
In coming to that view, I have taken into account the possible degree of harm that I regard the conduct involved may have caused. Beyond the hurt and insult involved, I have also found that the conduct was reasonably likely to have an intimidatory effect on some fair-skinned Aboriginal people and in particular young Aboriginal persons or others with vulnerability in relation to their identity.
I have taken into account that the articles may have been read by some people susceptible to racial stereotyping and the formation of racially prejudicial views and that, as a result, racially prejudiced views have been reinforced, encouraged or emboldened. In the balancing process, I have also taken into account the silencing consequences upon freedom of expression involved in the Court making a finding of contravention.
I have concluded that the conduct of Mr Bolt and the Herald & Weekly Times is not exempted by section 18D of the Racial Discrimination Act from being unlawful because:
(i)  it was not done reasonably and in good faith in the making or publishing of a fair comment, within the requirements of section 18D(c)(ii) of the Racial Discrimination Act; or
(ii) done reasonably and in good faith in the course of any statement, publication or discussion, made or held for a genuine purpose in the public interest, within the requirements of section 18D(b) of the Racial Discrimination Act.

I read paragraph 23 as legalspeak for: Andrew Bolt lied. Justice Bromberg's comment relates to common behaviour among right wing shock jocks: mendacious distortions, misrepresentations and outright lies, expressed in a manner calculated less to inform debate than to intimidate some readers and excite others. I've come to think of their shenanigans as narcissistic onanism. Paragraph 25 speaks to the impact of intemperate rhetoric on feeble minds.

The extreme right wing went into a predictable lather, ranting about infringement of civil liberties and freedom of speech. I'll borrow a phrase attributed to Britain's Advertising Standards Authority. Say what you like, provided it's Legal, Decent, Honest and True.


Psychopathy is described as characterised by " a lack of empathy and remorse, shallow emotions, egocentricity, and deceptiveness".

A key diagnostic tool is the Hare Psychopathy Checklist, factor 1 of which lists characteristics associated with narcissistic personality disorder or Aggressive Narcissism:

Diagnosis does not require every trait to be evident in an individual. Whether and to what extent each characteristic applies to a given person I'll leave to the reader's judgement.

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