Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication Adrienne Stone



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John Fairfax Publications Pty Limited v Attorney-General (NSW) [2000] NSWCA 198, para [84]. It did not, however, articulate any principled basis for the limitation.

63 In response to a claim brought by gay activists, the United Nations Human Rights Committee ruled that certain sections the Tasmanian Criminal Code (outlawing, inter alia, homosexual sex) were breached Australia’s obligations the International Convention on Civil and Political Rights. In response, the federal government proposed and the Parliament passed the Human Rights (Sexual Conduct) Act 1994 (Cth) overriding the Tasmanian law. See, Simon Bronnitt, ‘The Right to Sexual Privacy, Sado-Masochism and the Human Rights (Sexual Conduct) Act 1994 (Cth)’ (1995) 2 Australian Journal of Human Rights 519.

64 See above nn 47-48 and accompanying text.

65 The ‘Stolen Generation’ refers to Aboriginal and Torres Strait Islander children forcibly removed from their families by state and territory governments from the early part of the century to the early 1970s. See generally Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Human Rights and Equal Opportunity Commission, 1997).

66 In response to McBain v Victoria [2000] FCA 1009, finding that the requirement of s 8(1) the Infertility Treatment Act 1995 (Vic) that a recipient of infertility treatment be ‘married and living with her husband on a genuine domestic basis’ or ‘living with a man in a de facto relationship’ was inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth) and thus that the former provision was invalid under s 109 of the Constitution.

67 Compare Bringing the Home above n 65 with Healing: A Legacy of Generations (Senate Legal and Constitutional References Committee, Report of the Inquiry into the Federal Government’s Implementation of the Recommendations Made by the Human Rights and Equal Opportunity Commission in Bringing Them Home, 2000). See also, John Herron, ‘A Generation was Not Stolen’, The Sydney Morning Herald, 4 April 2000’; Peter Howson, ‘The Truth about the ‘Stolen Generation’’, The Age, 13 April 2000; ‘Editorial: Stolen Children, Stolen History’, The Age, 16 April 2000; ‘Fury over Government’s Denial’, The Age, 3 April 2000; Paul Kelly ‘Time for Howard to Listen’, The Australian, 29 May 2000.

68 The Prime Minister’s refusal to apologize to the ‘Stolen Generation’ is associated with his decrial of the ‘black arm band’ view of Australian history, which he takes to be the view that Australian history is ‘a disgraceful story of imperialism, exploitation, racism, sexism and other forms of discrimination.’ Mr Howard’s view is that, ‘the balance sheet of our history is one of heroic achievement and that we have achieved much more as a nation of which we can be proud than of which we should be ashamed.’ See the Hon. John Howard MP, ‘The Liberal Tradition: The Beliefs and Values which Guide the Federal Government’, 1996 Sir Robert Menzies Lecture, 18 November 1996. See generally, Mark McKenna ‘Different Perspectives on Black Armband History’, Commonwealth Parliamentary Library Research Paper No. 5, 1997; Gerard Henderson, ‘The Howard View of History’ The Sydney Morning Herald, 4 April 2000.

69 The Prime Minster has consistently maintained the view that a ‘formal national apology’ is not appropriate in part because of his view that most individual Australians living today bear no responsibility for these acts. See House of Representatives Hansard, The Hon. John Howard MP, 26 August 1999, pp 9206-07. See also Healing: A Legacy of Generations, above n 67, paras 4.12-4.26.

70 ‘Lesbians make Good Parents too: IVF Couple’ The Age 3 August 2000; Leslie Cannold, ‘The Disappearing Father’ The Age 3 August 2000; Michael Grose, ‘Dads Make a Difference’ The Age, 3 August 2000.

71 The Hon. John Howard MP, ‘Media Release: Amendment to Sex Discrimination Act’ 1 August 2000: ‘This issue primarily involves the fundamental right of a child within our society to have the reasonable expectation, other things being equal, of the care and affection of both a mother and a father.’ Compare, Cathy Sherry, ‘A Question of Rights: Mother’s and Child’s’ The Sydney Morning Herald, 4 August 2000; Bill Uren, ‘IVF: The Heart of the Matter’, The Age, 4 August 2000 (regretting use of the language of ‘rights’ and ‘discrimination’).

72 Alison Caddick, ‘What’s Love got to do with it?’ The Sydney Morning Herald, 26 August 2000.

73 The Hon. John Howard MP, ‘Media Release: Amendment to Sex Discrimination Act’ 1 August 2000; Explanatory Memorandum, Sex Discrimination Amendment Bill (No.1) 2000; ‘[I]t is consistent with the States’ responsibilities in relation to the regulation of the provision of medical care and treatment that they be permitted to regulate access to ART [assisted reproductive technology] services.’

74 Alexander Meiklejohn, ‘The First Amendment is an Absolute’ (1961) Supreme Court Review 245, 257, though his initial view was rather more restrictive. See, Alexander Meiklejohn, Freedom of Speech and Its Relation to Self-Government (1948) 22-27, distinguishing between speech on matters of public concern and other speech.

75 Ibid, 255.

76 Ibid, 263 (internal quotation marks omitted).

77 Of course, there may be some easily identifiable, common sense limits. It is difficult to imagine that work place or ‘back-fence’ gossip about the personal lives of private individuals could be considered political communication. There is also the intriguing question, which I put to one side, as to whether advocacy of the violent overthrow of government is covered by the freedom. See, generally Schauer above n 7, 194-95. Even accepting exclusion of these matters, the remaining category is disturbingly broad.

78 Laurence H Tribe, American Constitutional Law (2nd ed, 1988) 786-87 789; Zechariah Chafee, Book Review, (1949) 62 Harvard Law Review 891, 899-900.

79 When nominated to the United States Supreme Court, Bork recanted this view of the First Amendment before the United States Senate during his (ultimately unsuccessful) confirmation hearing. See, Cynthia L. Estlund, “Speech on Matters of Public Concern: The Perils of an Emerging First Amendment Category” (1990) 59 George Washington Law Review 1, 2 n 11.

80 Bork above n 57, 27.

81 Ibid, 28.

82 Ibid, 27.

83 See, Lillian BeVier ‘The First Amendment and Political Speech: An Inquiry into the Substances and Limits of the Principle’ (1978) 30 Stanford Law Review 299, 344.

84 Ibid, 345. See also Frederick Schauer, ‘Fear, Risk and the First Amendment: Unraveling the ‘Chilling Effect’’ (1978) 58 Boston University Law Review 685, arguing that the doctrine of the ‘chilling effect’ reflects a choice to extend protection of libelous speech beyond that which is strictly required by constitutional principle in order to protect the speaker and publishers of protected speech from the possibility of erroneous defamation judgments against them.

85 BeVier points to the particular difficulties posed by ‘mixed utterances’ i.e., those that combine protected and unprotected speech (ibid, 326-27) and to the complexity of cases in this area: ‘[F]irst amendment cases do not present factual situations that fall into readily identifiable or relatively stable analytic categories. They present, rather, factual variations along several ever-shifting continuums. The vindication of first amendment principle depends on the identification and evaluation of a multitude of variables, which are often interdependent … The presence of so many variables makes first amendment cases significantly different from one another … it is inescapably difficult to discover, describe and relate their differences to relevant doctrinal patterns.’ Ibid, 329-30.

86 Further the argument for category four communications runs into questions about the institutional capacities of judges. It is not at all clear how judges would assess whether communications develop qualities like intelligence, sensitivity and integrity. See BeVier above n 83, 317.

87 See above n 16 and accompanying text.

88 See above n 86 and accompanying text.

89 Theophanous (1994) 182 CLR 104, 125.

90 Theophanous (1994) 182 CLR 104, 124 (Mason CJ, Toohey and Gaudron JJ), quoting Eric Barendt, Freedom of Speech (1985) 152.

91 See, Chafee above n 78, 899-900: ‘[The] supposed boundary between public speech and private speech is very blurred … Birth control is the most personal of all matters and yet any discussion of it raises questions of the desirable, size of our population, the intelligent rearing of children, dependency, immortality and the clerical control of votes. The truth is that there are public aspects to practically every subject.’

92 The most commonly advanced arguments for freedom of speech are (1) the argument that it promotes the search for ‘truth’; (2) the argument that it promotes ‘autonomy’ and (3) the argument that it promotes democratic or self-government (see below n 92). See Greenawalt above n 13; Schauer above n 7, 15-72; Wojciech Sadurski, Freedom of Speech and Its Limits (1999) 16-20.

93On ‘democracy’ as a justification for freedom of speech see Greenawalt, above n 13, 145-46; Schauer above n 7, 35-46. A related justification advanced by Vincent Blasi is that freedom of speech serves the purpose of ‘checking’ the abuse of official power. Vincent Blasi, ‘The Checking Value in First Amendment Theory’ (1977) 3 American Bar Foundation Research Journal 521. Although this argument, which Professor Blasi suggests should operate in conjunction with other arguments for freedom of speech, has much in common with the ‘self-government’ justification (see below n 92), it focuses on the particular problem of misconduct by government officials. It therefore provides justification for a highly protective attitude to a narrow category of speech, speech that is capable of checking misconduct (by subjecting it to public scrutiny and, ultimately sanction at the ballot box). Ibid, 557-58.

94Some American theorists have preferred the expression ‘self-government’ on the basis that this is the fundamental value that underlies democratic government. See Alexander Meiklejohn, Freedom of Speech and its Relation to Self-Government, (1948) 3, see also, Robert Post, ‘Meiklejohn’s Mistake: Individual Autonomy and The Reform of Public Discourse’ (1993) University of Colorado Law Review 1109, 1114-15: ‘[M]ajoritarianism, from the perspective of traditional First Amendment doctrine, is merely a mechanism for decision making that we adopt to reflect the deeper value of self-government’. Unless I think the difference is pertinent I will use the term ‘democratic government’ without meaning to distinguish between the two concepts.

95 See generally, Greenawalt, above n 13, 143, 151-52; Schauer above n 7, 67-72.

96 See TM Scanlon, ‘A Theory of Freedom of Expression’ (1972) 1 Philosophy and Public Affairs 204. A related form of argument relies on the ‘self realization’ value, which includes both ‘autonomy’ in the sense of allowing people to make free decisions and also the individual’s capacity for self-development. See Thomas I Emerson, ‘Toward a General Theory of the First Amendment’ 72 Yale Law Journal 877, 819 (1963); Martin Redish, ‘The Value of Free Speech’ (1982) University of Pennsylvania Law Review 591.

97 Owen Fiss ‘Free Speech and Social Structure’ (1986) 71 Iowa Law Review 1405, 1409-10. See also Williams, above n 1.

98 Owen M. Fiss, The Irony of Free Speech (1996); Cass R. Sunstein, Democracy and the Problem of Free Speech (1993).

99 See for example, Post, above n 94 and accompanying text.

100 Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People, 26 (1948).

101 That is, the capacity of some to dominate public debate to the exclusion of others. A particular concern is the domination of political debate by wealthy political donors. Fiss, above n 98, 8-9, 16; see also below nn 135-37 and accompanying text. Fiss also shows a special concern for the way in which hate speech and pornography may ‘silence’ other speakers by ‘diminish[ing] the victims’ sense of worth, thus impeding their full participation in many of the activities of civil society, including public debate.’ Ibid, 16, though he is less comfortable with regulation of these forms of speech. Ibid, 25. See also, Sunstein, above n 98, 35. Sunstein also suggests that these arguments would support ‘requirements of public interest programming on television, rights of reply for dissenting views, controls on the power of advertisers to influence programming content, and limitations on advertising during children’s programming’ Ibid. Some advocates for the regulation of hate speech and pornography argue that it addresses the ‘silencing’ of the victims of these forms of speech. Charles Lawrence, ‘If He Hollers Let Him Go Regulating Racist Speech on Campus’ 1990 Duke Law Journal 431; Catherine MacKinnon, Feminism Unmodified (1987) 209; Rae Langton ‘Speech Acts and Unspeakable Acts’, (1993) 22 Philosophy and Public Affairs 293.

102 Fiss, above n 98, 18.

103 New York Times v Sullivan 376 US 254, 270 (1964); Abrams v United States, 250 US 616, 630 (1919) (Holmes J).

104 Buckley v Valeo 424 US 1, 48-49 (1976) ‘[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure the widest possible dissemination of information from diverse and antagonistic sources, and to assure unfettered interchange of ideas.’ (citations omitted).

105 See Schauer, above n 7, 45-46. This idea is found in the judgments of Judge Learned Hand, see United States v Associated Press, 52 F Supp 362, 372: ‘The First Amendment … ‘presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.’

106 Scanlon, supra n 94. The argument is that an autonomous person is one who makes independent choices about her actions and beliefs in the face of competing reasons. Freedom of speech promotes autonomy by providing the individual with the information on which to make these choices. Therefore, respect for autonomy precludes state from regulating speech because of its capacity to persuade an individual to have a certain belief or because of its capacity to cause a person to take action by persuading him that the action is worthy.

107 Ibid, 170.

108 Ibid.

109 Lange (1997) 189 CLR 520, 566–7. See, also McGinty (1996) 186 CLR 140, 231-32 (McHugh J): ‘Underlying or overarching doctrines may explain or illuminate the meaning of the text or structure of the Constitution but such doctrines are not independent sources of the powers, authorities, immunities and obligations conferred by the Constitution. Top-down reasoning is not a legitimate method of interpreting the Constitution ... it is not legitimate to construe the Constitution by reference to political principles or theories that are not anchored in the text of the Constitution or necessary implications from its structure.’ (footnote omitted).

110 Post, above n 94.

111 Post, ‘Meiklejohn’s Mistake’ above n 94, Robert Post, ‘Equality and Autonomy in First Amendment Jurisprudence’ (1997) 95 Michigan Law Review 1517. A more radical version of the argument, on which I do not seek to rely is put by Martin Redish. Whereas Post sees autonomy as an aspect of self-government, Redish sees self-government as an aspect of ‘self-realization’, a value that encompasses both autonomy in the sense discussed above (the individual’s freedom to make choices about her acts and beliefs) and the freedom to develop the individual’s ‘human faculties’. Redish, above n 96, 602-03 Redish argues that the attraction of democracy lies in the control it gives to individuals over their own destinies. He argues ‘if one does not accept the morality of such a proposition, why bother to select a democratic system in the first place?’ Ibid. Therefore the democratic government rationale for freedom of speech must be understood as a manifestation of a more general rationale for freedom of speech: the ‘self realization’ value.

112 Post, ‘Meiklejohn’s Mistake’, above n 94, 1116.

113 Ibid, 1116.

114 Ibid, 1128: ‘Public discourse merits unique constitutional protection because it is the process through which the democratic ‘self,’ the agent of self-government, is itself constituted through the reconciliation of individual and collective autonomy. Constitutional solicitude for public discourse, therefore, presupposes that those participating in public discourse are free and autonomy.’

115 Post, ‘Equality and Autonomy’, above n 111, 1524 – 26.

116 Ibid, 1524.

117 Post, ‘Meiklejohn’s Mistake’ above n 94, 1117-1118.

118 Meiklejohn’s argument that is that government’s role is like that of a moderator of a town meeting, controlling debate to ensure an orderly discussion in which all points of view are presented. See Alexander Meiklejohn, Political Freedom: The Constitutional Powers, above n 100.

119 Post, ‘Meiklejohn’s Mistake’, above n 94, 1118 (footnote omitted).

120 See Post, above n 92 at 1131-32 'The explosive expansion of the regulatory state during the 20th centry .. has been fueled by acceptance and application of the insights of social science … We do not regard these government controls as fundamentally incompatible with the premises of democratic freedom because we conceive of them to have been freely adopted by the citizens of a democratic state. Analogous managerial controls over public discourse, however, cannot be conceptualized as democratically legitimate in the same way, for they displace the very processes of collective self-determination.

121 See above n 109.

122 See above n 96.

123 See above nn 15-16 and accompanying text.

124 As I have argued elsewhere, the text and structure interpretive method does little to constrain the interpretation of the freedom of political communication. Stone above n 23. See also Jeremy Kirk, 'Constitutional Implications (II): Doctrines of Equality and Democracy' (2001) 25 Melbourne University Law Review 25, 50.

125 See Post, above n 92, 1115.’

126 See above n 17 and accompanying text.

127 See above n 107.

128 Indeed, I have argued elsewhere that the High Court should, where possible, postpone developing the theoretical underpinnings of the freedom of political communication because of the ambitious and difficult nature of the task. See, Adrienne Stone, ‘The Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Federal Law Review 219.

129 Post, ‘Meiklejohn’s Mistake’, above n 92, 1123-24 'Many who practice empirical political science would not doubt object to the identification of democracy with the value of autonomous self-government. But within the world of [American] constitutional law this identification stands virtually unchallenged' (emphasis added).

130 Australian Capital Television (1992) 177 CLR 106, 181 ‘the legal foundation of the Australian Constitution is an exercise of sovereign power by the Imperial Parliament’. As noted by Michael Waite there is a possibility that this view has been revived in Sue v Hill [1999] HCA 30 para 70 where Chief Justice Gleeson and Justices Gummow and Hayne refer to the Australian sovereign as ‘a constitutional monarch.’ See Michael Waite, ‘The Slumbering Sovereign: Sir Owen Dixon’s Common Law Constitution Revisited’, (2001) 29 Federal Law Review 57. The contrary view is that, at least since the passage of the Australia Act 1986 (UK) the Australian Constitution derives it authority from the Australian people (the ratification of the Constitution by the people of the Australian states and it continued acceptance by the Australian Parliament). Australian Capital Television (1992) 177 CLR 106, 138(Mason CJ): ‘[T]he Australia Act 1986 (UK) marked the end of legal sovereignty of the Imperial Parliament and recognized that ultimate sovereignty resided in the Australian people.’ See also, Nationwide News v Wills (1992) 177 CLR 211, 172 (Deane J); Australian Capital Television (1992) 177 CLR 106, 138 (McHugh J). For an excellent discussion (and thorough review of judicial statements on this issue) see George Winterton, ‘Popular Sovereignty and Constitutional Continuity’ (1998) 26 Federal Law Review 1. Professor Winterton reconciles the two positions as follows, ‘The continuing legal authority of our Constitution derives from its original enactment at Westminster and subsequent retention (with amendments) by those empowered to amend it, which includes the Australian electors. But the latter derived their legal authority from the former.’ Winterton ibid, 7.

131 Compare these views to conventional understandings of the United States Constitution. In New York v Sullivan 376 US 254, 274, 275, the Court discusses James Madison’s view that ‘[t]he American form of government was ‘altogether different’ from the British form, under which the Crown was sovereign and the people were subjects’ and his view that ‘[i]f we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.’ Importantly, Madison linked these differences to individual freedoms, ‘[i]s it not natural and necessary, under such different circumstances … that a different degree of freedom in the use of the press should be contemplated?’ (footnotes omitted)

132 In Australia, the growing acceptance of notions of popular sovereignty was employed in favour of arguments for implied constitutional rights. Professor Saunders notes this association in Cheryl Saunders, "The Mason Court in Context", in C Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 2, 4. Some commentators have argued that questions of sovereignty have nothing to say about the existence, or otherwise, of constitutional implications protecting individual rights. See Winterton, above n 131, 12: ‘The rights and freedoms of citizens are determined by the sovereign’s handiwork, the Constitution, wherein the people may choose to retain a multitude of rights, as in the United States, or relatively few or even none, by adopting wholly or partially the principle of parliamentary supremacy.’ The argument I am making suggests something slightly different. I am suggesting that question of sovereignty help interpret the existing right of the freedom of political communication by defining the nature of the institutions of representative and responsible government it serves.

133 See above n 129.

134 Remembering that, as discussed in Part I, that 'political communication' covers communication about a broad range of matters.

135 Above nn 99-101.

136 See Fiss, above n 98.

137 On this view, other kinds of arguments might nonetheless allow for the regulation of speech. For example, Post recognizes that regulation of commercial speech does not raise this problem. See, Robert C Post, ‘Reconciling Theory and Doctrine in First Amendment Jurisprudence’ (2000) 88
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