I still think I come down on the side of this case being one of defamation, but a lot of interesting things are being written in response. The first piece is from Mark Bahnisch at Overland:
Free speech, as the judgement in fact indicates, must be speech that is accountable to truth. That is to say, it is not the same concept as ‘freedom of expression’ (one that more properly belongs to artistic domains) or indeed ‘freedom of opinion’. Free speech ought to be both in service to the truth, and oriented to its discovery. That requires, as a very minimum condition of possibility of exercising such a right, a willingness to ground one’s views in ascertainable and verifiable fact.
Bolt’s position of privilege derives not just from the fact that there is no attempt on the part of his monopolistic megaphone mouthpieces to counter any of his claims by the remotest vestige of ‘balance’ or accountability to fact. It also derives from the fact that his claims have the effect of offering permission to hold the views he espouses, and indeed empowering others to persist in them and reproduce them. These ‘opinions’ are not just abstract ones, but have actual effects in producing and reproducing social and racial inequality, and in fostering vilification of a whole host of unnamed and unprominent Australians, which not incidentally, silences them.
That, folks, is privilege, and it’s racial privilege, and it’s precisely how racial privilege works in a post-colonial society. It’s a daily, nay, a minute by minute re-enactment of the original Dispossession.
And the second comes from David Marr at the Sydney Morning Herald:
Freedom of speech is not at stake here. Judge Mordecai Bromberg is not telling the media what we can say or where we can poke our noses. He's attacking lousy journalism. He's saying that if Andrew Bolt of the Herald Sun wants to accuse people of appalling motives, he should start by getting his facts right.
Bolt was wrong. Spectacularly wrong. In two famous columns in 2009 he took a swipe at "political" or "professional" or "official" Aborigines who could pass for white but chose to identify as black for personal or political gain, to win prizes and places reserved for real, black Aborigines and to borrow "other people's glories".
But Bolt's lawyers had to concede even before this case began in the Federal Court that nine of these named "white Aborigines" had identified as black from childhood. All nine came to court to say they didn't choose this down the track but were raised as Aborigines. Their evidence was not contested by Bolt or his paper.