First published in Crikey.

The Andrew Bolt judgment (Boltgate? Gatebolt) has had and will have a lot of keystrokes devoted to it over the next while, but most of them will be from either the liberal-left, the cultural left, or the Right. The liberal-left will be well represented by David Marr’s SMH piece last week; the cultural left covers a lot of people identified as ‘the left’ or ‘the Left’, usually by the Right, and will be in no doubt that it is right for the state to rein in Bolt’s skin-based racial classification attempts. The Right has its mission: to repeal section 18c of the Racial Discrimination Act.

But what of the material left – Marxist and otherwise – who, if honest, will admit that the Bolt decision represents a bind? On the one hand, Bolt’s use of the power of News Ltd to distribute an idea of race, and a series of insults connected to it, that we have not seen since the 1920s, is vile in the extreme. Purporting to be a campaign against division, it is really an obsession with purity and a fear of ‘race-mixing’  – a translation of the neo-Calvinist faith instilled by his Dutch father. With its obsession with purity – first in doctrinal matters and then rolled over into racial terms when the Dutch-acquired empires – it’s a miserable doctrine, a product of fear and projected anxiety, which can be mistaken for energy.

So it is good to see the powerful propagation of this by News Ltd given a push back. But but but … no one who believes in having a critical relationship to the state and its claims can be comfortable with a decision in which a state apparatus determines what is ‘offensive’, to whom and by how much. Or that offensiveness should be grounds for words entering a wholly different category, that of legal sanction. Yes, in material terms there is no such thing as free speech, and the public sphere is shaped by the forces brought to bear, giving the illusion of being some sort of neutral agora or arena.

But saying that is not the same as saying that there is no public sphere independent of the state. There is, and it’s where we, as the left, work – and where as part of that work, we advocate things that are by definition in contradiction to the state. In the public sphere we want to advocate civil disobedience, the breaking of laws, the support of armed struggle abroad, and the possibility of insurrection and resistance at home. In other words we are advocating that society see itself and the public sphere as autonomous from the state, and challenge times when the state begins to encroach on that autonomy.

Consenting to the state as an adjudicator on all but the most universally abhorrent speech (explicit threats of violence against named individuals, for example), leaves you with little consistent defence when it comes to tell you can’t urge people to break the law, occupy buildings etc. The state will try that anyway, but it will succeed far more easily if you didn’t defend a certain autonomy from the state even when the people using it were odious and powerful.

Who really wants to go down the road of said David Marr after all – defending in arch tones the right of Bill Henson to pretty much do what he liked and pouring scorn on the notion that the state might adjudicate offensiveness in art, and then flipping around to do the same thing on Bolt? That is brain-dead Whitlam-era left liberalism, nothing less – the simple belief that everyone ‘knows’ what shouldn’t be said, and whatever is beyond the pale will be self-evidently so. Marr has tied himself in knots over this.

One can hardly blame the nine people traduced by Bolt for using what power is available to counter his vicious, destructive baiting. And much of the decision was simply around Bolt’s libellous inaccuracy around the career of complainants such as Anita Heiss. Given the number of lawyers involved, I think a civil libel suit – draining as it can be – would have been a better tactic in such matters, since within a court – acting as a public sphere – Bolt would have been shown up as a reputation-wrecker.

But whatever the strategies of the nine involved, the left has to reaffirm again and again the notion of the public sphere as a separate thing, encroached, and distorted by capital perhaps, but nevertheless a social object, not a state-sanctioned one. People who went before spent too many days and years in jails defending the right to urge revolt for it to be compromised by catch all doctrines of offence. In such circumstances, pointing to the power of capital as an excuse to go easy on such state control, is not analysis, but excuse for ducking the tougher fight, including with one’s own side.