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

II. An Institutional Right: Underlying Rationale

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II. An Institutional Right: Underlying Rationale

I have so far assumed that the institutional rationale for the freedom of political communication excludes other ‘non-political’ values sometimes advanced for freedom of speech. Of the traditional free speech justifications,92 it seems that the only relevant arguments are those that relate to the role of freedom of speech in protecting democratic government93 (or self-government).94 I now wish to challenge that assumption.

Individual autonomy is a value often advanced as a justification for freedom of speech.95 Freedom of speech protects individual autonomy by allowing individuals to form their own opinions about their beliefs and actions.96 This argument seems clearly inappropriate for the freedom of political communication, falling into the category ‘personal’ rather than ‘institutional’. However, arguments for autonomy and arguments for democratic government are rather closely linked and it is possible to draw similar links between autonomy and the apparently narrower justification behind the Australian doctrine.

  1. Autonomy as Instrumental to the Achievement of Representative and Responsible Government

Perhaps the most obvious way in which autonomy might be relevant to the freedom of political communication is its instrumental role in promoting representative and responsible government. It is easy to see that some protection of individual autonomy is required by the institutional rationale for the freedom: people need to have free access to the information necessary to make free choice at elections. Stated at this level of generality, the point is uncontroversial. Even critics of ‘autonomy’ as a free speech rationale accept that autonomy should be protected where necessary to ensure the appropriate exercise of the citizen’s political function.97

However, if we attempt to be more specific, even this seemingly uncontroversial point raises difficulties because opinions differ as to how the protection of autonomy relates to the exercise of the vote. This matter is the subject of a deep schism in modern American free speech theory: the divide between theorists who place emphasis on the quality of public debate and are sympathetic to government intervention in order to promote a rich and balanced debate98 and free speech theorists who view such intervention with great hostility.99

The two theories divide sharply on the issue of ‘speaker autonomy’ that is on the freedom of the individual to participate in public debate as a speaker. For the theorists who argue for a ‘rich and balanced’ debate, speaker autonomy has a relatively small role as a free speech value. To these theorists, ‘what is essential is not that everyone shall speak, but that everything worth saying shall be said.’100 Further, they are concerned by the capacity of social structures to impede the rich public debate required for democratic government.101 Therefore, they would allow a relatively wide scope for the state to intervene to ensure fairness and balance in public debate. This may require interference with the autonomy of the speaker but ‘[s]ometimes we must lower the voices of some to hear the voices of others.’102

On the other hand, the more traditional First Amendment conception of the relationship between democratic government and public debate requires a robust and vigorous debate103 (rather than a restrained, fair debate) and is characterized by hostility to government attempts to correct distortions in public debate.104 One prominent argument for this position is Frederick Schauer’s argument that the consequences of a poor government decision are particularly serious, and the risk government intervention poses to speech outweighs any possible benefit to be derived from regulation designed to enhance public debate.105 This position in turn requires more freedom for the individual to participate in public debate and thus more protection of the autonomy of the speaker.

  1. Autonomy as Intrinsic to Democracy

A stronger version of the argument is that democratic government presupposes or logically implies the autonomy of citizens. On this view, respect for autonomy is an essential aspect of democratic government and thus must be protected irrespective of the value’s instrumental role. In developing his autonomy-based argument for freedom of speech,106 Thomas Scanlon wrote ‘[t]he legitimate democratic state is one that regards individuals as ‘equal autonomous agents.’107 So while it might be conceivable that a state might chose to treat its citizens otherwise:

These actions would have to be justified on some other ground (e.g., utilitarianism) and the claim … to be obeyed would not be that of a legitimate government in the usual democratic sense.108
To translate the argument into the Australian context, the argument would be that the system of representative and responsible government instituted by the Constitution logically requires, or is premised upon, some respect for the autonomy of the individual. Such an argument would bring with it the consequence that the concept of personal autonomy would guide the interpretation of the freedom of political communication, even when personal autonomy is not instrumental to the protection of representative and responsible government.

This is an ambitious and perhaps startling argument, especially given the High Court’s insistence that the freedom of political communication is governed by constitutional text rather that ‘external’ political principles or theories.109 I will therefore set out the argument in two steps. First I will review a prominent argument that the democratic government rationale for freedom of speech entails some concern for individual autonomy. Then I will suggest how this idea might be relevant to the freedom of political communication.

(a) Autonomy and Democratic Government

One version of the argument, put by Robert Post, is that a commitment to autonomy is included within the democratic government (or as he prefers it, ‘self-government’110) rationale.111 Professor Post’s argument is that the ‘internal logic of self-government’112 requires individuals to see collective decisions as connected to their own self-determination. That is they must have a sense of participation in the process and, although they might not agree with all majoritarian decisions, a sense of legitimacy and identification with the government.113 Such identification, he argues, requires more than voting, even if the state provides citizens with information relevant to their vote. It requires participation in a free public discourse.114

To make his point, Post asks us to imagine a society in which voters had unlimited access to information relevant to their electoral choices. That information, however, is provided by the state and voters are not permitted to discuss these issues among themselves nor add to the information provided to others.115 In such a society, he says, ‘[i]ndividuals … feel completely alienated from these decisions. They do not identify with them and instead feel controlled and manipulated by the external force of the collectivity.’116

Post’s point is not, however, limited to how individuals feel about government. He also makes the stronger point that where the conditions of public debate are too greatly controlled, voters are inappropriately controlled and thus self-government is undermined. Self-government requires not only that there be a debate of public issues but that citizens can contest the terms of that debate. If the state determines the conditions on which debate is conducted, this necessarily requires the state to impose its own view of what is appropriate public debate, a matter on which there is no ‘neutral’ or generally agreed standards.117 On the comparison of public debate to a town meeting, an analogy Meiklejohn famously employed to justify governmental control of the conditions of public debate,118 Post writes:

Public control over the presentation and characterization of issues within a town meeting seems unproblematic because of a shared agreement concerning efficient institutional function and procedure. But with democratic life such an agreement cannot be assumed without concomitantly diminishing the arena for self-determination … ‘political conflict is not like an intercollegiate debate in which the opponents agree in advance on the issues’.119
His conclusion is that autonomous participation in public debate is a necessary part of the framework in which such public debate must occur. It is therefore a precondition of ‘self-government’.

This is not an argument, it should be noted, for the protection of personal autonomy in general. It is an argument that autonomous participation in public debate is a necessary precondition of that form of government. This form of autonomy is given special protection because it creates the context in which democratic politics is conducted. Thus, other encroachments on personal autonomy are justified precisely because they occur within a context in which individuals are free to participate in the public debate about those issues.120

(b) Autonomy and the Australian Constitution

Of course, Post's argument is exactly the kind of argument that the High Court intended to exclude by its adoption of the ‘text and structure’ interpretive method.121 Post views democratic government and as a mechanism for achieving a deeper value (‘self-rule’ or ‘self-government’).122 Drawing on Lange, the obvious objection to Post's argument is that the freedom of political communication is not directed to any deeper value, but only to the voting procedure for the House of Representatives and the Senate and other textually identifiable features of representative and responsible government.123

I therefore regard it as most unlikely that an argument like Post's will be at all influential upon the High Court in the foreseeable future. However, if we put the Court’s current conservatism to one side and consider the matter from first principles, these arguments cannot simply be dismissed as irrelevant to the freedom of political communication.124 The argument does not depend on any particular constitutional text, but on what Post argues to be logically implied by the democratic government (or ‘self government’) rationale for freedom of speech.125 If it could also be argued that the institutions of representative and responsible government established by the Australian Constitution also logically require some protection of autonomy, Post's argument have some force with respect to the freedom of political communication.

Let me suggest, then, how the argument might be transferable to the Australian Constitution’s adoption of a system in which the people choose their elected representatives. The key feature, once again, is the requirement of a ‘true’ choice in elections for the federal Parliament.126 The idea of a true choice requires some explanation: what does it mean to say that a choice is ‘true’? It might be said that the idea of people of choosing their representatives requires that they be autonomous participants in a public debate, and that they be able to contest to terms on which the debate occurs. Without freedom to participate in public debate in this way, voters would feel controlled and would be subject to a state-imposed conception of what public debate should be like. Choices made in this context would not be the ‘true’ choices that the Constitution requires. Thus, despite the Lange Court’s distaste for ‘political principles and theories’,127 the idea of ‘true’ choice (which it endorses) does allow for the importation of some deeper ideas into the freedom of political communication.

I am not suggesting, I should be clear, that the Australia courts should adopt these ideas.128 Apart from responses to the argument as a theory of the First Amendment, specific features of the Australian context may well be good reasons to reject the link that Post draws between democratic government (or collective self-rule) and individual self-rule. First, it should be recognised that Post's claim that democratic government necessarily or logically entails some protection for autonomy is dependent on his adherence to a particular concept of democratic government.129 It is because he defines a democratic system of government as one in which citizens participate freely in a public debate (including in the process of determining the framework in which that debate occurs) that he is able to imply from it the need to protect autonomy in this sphere. Therefore, it would be possible to reject the argument by offering a different interpretation of the values underlying representative and responsible government in Australia. For example, theorists committed to an 'originalist' interpretation of the Constitution might reject the argument arguing that the framers' vision of Australian government was unconcerned with values like personal autonomy. A similar argument could be maintained by those who consider that the Australian Constitution’s authority stems from the Parliament at Westminster (which passed the Act of which the Constitution forms a part)130 This argument, if accepted, points to a clear difference between the forms of government implement by the United States and Australian constitutions.131 If the power to choose Parliamentary representatives is a grant from an external body, rather than a collective decision of the Australian people to govern themselves, then it could be seen as a limited grant of power designed to give Australian voters some choice in their government but not designed to maximize a stronger concept of self-government of the kind upon which Post relies.132 Subjecting voters to state imposed conditions on the conduct of public debate could (under this approach) be consistent with our fundamental constitutional premises.

I will not attempt to suggest any particular answer to these questions about the Australian Constitution here. My point not to offer an alternative theory of Australian democracy but to show that it is possible that the freedom of political communication could be grounded in a concept of representative and responsible government that requires some protection of personal autonomy. The High Court's current interpretive methods do not rule out such arguments133 and thus even though the freedom of political communication serves an institutional rationale (and thus is not a ‘personal’ right), questions about more ‘personal’ values remain. Questions of individual autonomy cannot be excluded if the form of government the freedom protects itself requires some protection of autonomous participation in public debate.

The High Court has yet to address this question and, given, its current aversion to theoretical analysis, it is likely to leave undecided for sometime. Nonetheless, the issue is not merely of theoretical interest. The argument does not alter the fact that the freedom of political communication only protects communication designed to ensure a true electoral choice134 but it would alter our conception of what kind of regulation of such political communication is permissible. Post's argument is addressed to that dispute, discussed above,135 between traditional American free speech theorists and those who argue that some regulation of speech is permissible because it improves the democratic process. Indeed his principal target, Owen Fiss, is perhaps the principal exponent of the idea that the First Amendment permits the regulation of campaign spending, hate speech and pornography, because such regulation contributes to a 'rich' public debate.136 . Post's argument is that because democratic government should be understood to include a commitment to autonomous participation in political debate, regulation that interferes with such autonomy cannot be reconciled with democratic ends.137

One might tempted to make a quick response to this point. It might be argued that Fiss' vision of free speech is also one concerned with autonomy. The laws that he supports address the ability of the powerful to dominate public debate and therefore enhances the capacity of others to participate. Thus, it might be thought that Fiss’s approach interferes with the 'autonomy' of some only to increase the autonomy of others. This argument, however, mistakes the role that autonomy plays in Post's theory. For Post, autonomous participation in public debate is not something that the state can set to equalize, because the legitimacy of any such action depends itself on autonomous participation of the citizenry in public debate.138 Thus autonomy must be a presupposition of democratic self-government, rather than an ideal that it seeks to maximise.139Accepting, then, that Post's argument is relevant to the debate over laws that restrict speech in an effort to enrich public debate, the question is one that the Australian courts may have to face. It seems most likely that the issue will arise in the context of campaign finance legislation.140 As the facts of Australian Capital Television v Commonwealth141 themselves illustrate, legislation addressing the problems of campaign finance (and thus limiting political communication) is justified on the basis that it improves the very political processes with which freedom of political communication is also concerned. Although it invalidated the legislation in Australian Capital Television, the High Court has yet squarely to face the question of whether government may ‘manage’ the public debate, silencing some voices in the interests of rich public debate.142 The current conservatism of the Court suggests that it would find such legislation compatible with the freedom, as do some dicta in Australian Capital Television v Commonwealth.143 If this is the prevailing view, arguments that autonomous participation in public discussion is either instrumentally necessary for, or an intrinsic part of, the constitutionally prescribed form of government pose a challenge with which Australian courts have not yet dealt.

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