There are three fundamental rationales that are often advanced in favour of free speech. The first is that free speech advances the search for the truth. The second is that free speech supports individual freedom and autonomy. The third is that free speech is essential to a liberal democracy.
It cannot be denied that racial vilification laws impact upon the freedom of speech. This is the entire purpose of racial vilification laws. These laws operate in a manner akin to defamation laws. Both defamation and racial vilification laws operate as a type of personal injury law. That is, where harm is done to a person's reputation or dignity the law offers a course of action and a remedy.
The difference between defamation and racial vilification laws is that where the former is concerned with individual reputation the latter is concerned with a group's reputation and dignity.
The basis for racial vilification laws is twofold. Firstly, every individual has a right to live with dignity in Australia without facing vilification on the basis of their race, colour, national or ethnic origin. Secondly, racial vilification undermines equality by lowering the status of a defined group within the eyes of the community.
One of the fundamental purposes of speech is to persuade. It follows that speech which can be characterised as racial vilification has the capacity to negatively influence others against other races. Accordingly, it is consistent with a general prohibition on racial discrimination to make some instances of racist speech unlawful under the Racial Discrimination Act subject to certain conditions
Paradoxically, the Andrew Bolt case has actually advanced each of the three rationales that typically support free speech.
First, the litigation and the judgment have exposed a number of falsehoods in Bolt's writings. If the articles stood unchallenged these falsehoods would have remained on the public record. A democracy must be a marketplace of ideas, but no market prospers when false claims go unchallenged.
Second, the imputation in Bolt's articles, that the light-skinned individuals in question were too 'white' to be Aboriginals, would have the effect of lowering the status of those individuals and other light-skinned Aboriginals in the eyes of the wider community. This would diminish their individual freedom and their ability to freely and happily