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Judge Censors Speech About Affirmative Action and Fraud in Racial Set-Asides

Political "commentator Andrew Bolt 'was found guilty Wednesday of breaking Australian discrimination law by implying that fair-skinned Aborigines chose to identify as indigenous for profit and career advancement.' A judge 'said he will prohibit reproduction of the offending articles,' and 'Bolt and his publisher must meet with the plaintiffs to discuss appropriate court orders that would reflect the judgment.'" This is an extremely damaging blow to free speech. The problem of fraud in affirmative action programs is neither new nor rare. People who are not minorities often pretend to be minorities in order to obtain benefits under affirmative-action programs and racial set-aside schemes. (The Massachusetts Supreme Court upheld the firing of two brothers who pretended to be black to receive preference in hiring). And people often push the envelope in claiming minority status when they have only a small fraction of non-white or minority ancestry. (For example, beneficiaries of affirmative action included people who were only one-quarter Hispanic, under a consent decree in the U.S. v. New York City Board of Education case.) Australia does not have an equivalent of the American First Amendment, but that is no excuse for the judge's verdict, since the speech restrictions in the Australian Racial Discrimination Act contain an applicable defense of "fair comment." The judge, Mordy Bromberg, did not deny that the problem of fraud in affirmative-action programs existed, and claimed that “nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people." But he refused to allow the defense of fair comment mandated by the statute, because, he said, “of the manner in which that subject matter was dealt with" by the commentator. But in truth, the principal thing distinctive about the political commentator's "manner" was his viewpoint: he was citing affirmative action fraud to criticize affirmative action programs, rather than just to highlight particular undeserving non-minority beneficiaries of it (as even left-leaning journalists occasionally do). The judge was offended by his viewpoint, and used that as a pretext to gut the "fair comment" defense recognized by law. As Popehat notes, people claiming to be Australian aborigines (and thus eligible for affirmative action) include people whose "face is paler than" his "Scandinavian ancestors."  The judge did find that some of Bolt's many factual contentions were erroneous, but in reality, that was not the judge's chief concern, as his railing about Bolt's alleged tone ("provocative," "inflammatory," and "gratuitous") and the court's rejection of literal truth as a defense indicated ("To establish the defence of fair comment the requirement is not merely that the facts stated are true.").  The judge has indicated that he will issue "orders prohibiting the republication of the newspaper articles," even though those articles made valid points. In addition to being judicial overreaching, the judge's decision flouts free-speech provisions contained in international treaties signed by Australia like the International Covenant on Civil and Political Rights. The right to criticize affirmative action is a free-speech right, even in contexts where free speech is quite limited, like the public employment setting, where court rulings like Connick v. Myers allow greater restrictions on speech. For example, the California Department of Corrections attempted to fire employee John Wallace after he angrily denounced its affirmative action plan. The courts found that his criticisms of affirmative action were protected by the First Amendment, and barred Wallace’s firing, in California Department of Corrections v. State Personnel Board, 59 Cal.App.4th 131 (1997). The Australian court ruling came in the case of Eatock v. Bolt.