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

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California Law Review 2353, 2373.

138 See above n 120 and accompanying text.

139 Thus, his argument relies upon an ‘ascriptive’ sense of autonomy, the idea that autonomy is not a quality that we are empirically judged to have, but a ‘moral right to personal sovereignty’. See, Richard H. Fallon, Jr. ‘Two Senses of Autonomy’ (1994) 46 Stanford Law Review 875, 877. Professor Fallon distinguishes between this ‘ascriptive’ sense and a ‘descriptive’ sense of autonomy: ‘In one fundamental usage, autonomy is largely a descriptive concept which refers to people’s actual condition and signifies the extent to which they are meaningfully ‘self-governed’ in a universe shaped by causal forces … Employed as an ascriptive concept, autonomy represents the purported metaphysical foundation of people’s capacity and also their right to make and act on their own decisions … Ascriptive autonomy – the autonomy that we ascribe to ourselves and others as the foundation of a right to make self-regarding decisions – is a moral entailment of personhood.’ Ibid 877, 878.

140 I have not discussed regulation of pornography and hate speech (see above n 101) because it is seems unlikely that the Australian courts would regard these as political communication.

141 (1992) 177 CLR 106. The impugned legislation in that case limited electronic advertising during election periods. It was directed at reducing the disproportionate influence of wealthy donors to political parties. As the Commonwealth argued in that case: ‘[T]he evident and principal purpose of [the law] is to safeguard the integrity of the political system by reducing, if not eliminating, pressure on political parties and candidates to raise substantial sums of money in order to engage in political campaigning on television and radio, a pressure which renders them vulnerable to corruption and to undue influence by those who donate to political campaign funds.’ Australian Capital Television (1992) 177 CLR 106, 129.

142 The law at issue in Australian Capital Television was held invalid because the way in which it distributed free access to the electronic media during election periods was considered likely to favour established political parties. Australian Capital Television (1992) 177 CLR 106, 145 (Mason J), 172 (Deane and Toohey JJ), 221 (Gaudron J), 237 (McHugh J).

143 Australian Capital Television (1992) 177 CLR 104, 169 (Deane and Toohey JJ)(emphasis added): ‘A law prohibiting or restricting political communications by reference to their character as such will be consistent with the prima facie scope of the implication … [if] it is justified as being in the public interest for the reason that the prohibitions and restrictions on political communication which it imposes are … conducive to the overall availability of the effective means of such communication’. Significantly, Justices Deane and Toohey cite Red Lion Broad Co v FCC, 395 US 367 (1969) (upholding federal regulations of the broadcast media), a decision that Robert Post describes as ‘[t]he one notable exception to [the First Amendment’s] commitment [to individual rights] … these regulations … were designed to promote a balanced and well-ordered national dialogue on public issues’. Post ‘Reconciling Theory and Doctrine in First Amendment Jurisprudence’, above n 134, 2370.

144 One further possibility that can be fairly readily excluded is the sense that litigants may only assert a violation of their own, and not someone else’s, constitutional rights. See Broadrick v Oklahoma 413 US 601, 610-11 (emphasis added): ‘[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. A closely related principal is that constitutional rights are personal and may not be asserted vicariously.’ See generally, Matthew Adler, ‘Rights Against Rules’ (1998) 97 Michigan Law Review 1, 39 n 147 and cases there cited.) There is no suggestion in any judgment considered here that casts doubt on the corresponding requirement in Australian constitutional law.

145 Thus a right like the right against unreasonable searches and seizures, or the privilege against self-incrimination (found in the Fourth and Fifth Amendments to the Constitution of the United States) would not count as personal rights. Although these rights are directed to the protection of individuals, they are negative rights that protect only against the action of government.

146 (1997) 189 CLR 520, 560. See also Levy (1997) 189 CLR 579, 622 (McHugh J); Theophanous (1994) 182 CLR 104, 146-48 (Brennan J); 168 (Deane J); Cunliffe v Commonwealth (1992) 182 CLR 372, 327 (Brennan J); Australian Capital Television (1992) 177 CLR 104, 150 (Brennan J). For similar statements in the literature on the freedom of political communication, see Anne Twomey ‘Expansion or Contraction? A Comment’ (1998) 20 Adelaide Law Review 147, 150; Richard Jolly, ‘The Implied Freedom of Political Communication and Disclosure of Government Information’ (2000) 28 Federal Law Review 41, 43, 51; Williams, above n 1, 62.

147 (1994) 182 CLR 272, 326.

148 Theophanous (1994) 182 CLR 104, 148; Cunliffe v Commonwealth (1994) 182 CLR 272, 326.

149 McClure v Australian Electoral Commission (1999) 163 ALR 734, 741 (Hayne J): ‘the freedom of communication implied in the Constitution is not an obligation to publicise. The freedom is a freedom from governmental action; it is not a right to require others to provide a means of communication.’

150 The terminology of ‘vertical’ and ‘horizontal’ rights is used in the context of European and South African Rights. See, Andrew Clapham, Human Rights in the Private Sphere (1993), Murray Hunt ‘The ‘Horizontal Effect’ of the Human Rights Act’ [1998] Public Law 423, Stuart Woolman ‘Chapter 10: Application’ in Matthew Chaskalson et al (eds) Constitutional Law of South Africa (1996). Under a ‘vertical’ approach to rights ‘human rights law is concerned only with the relationship between the state and the individual’ under a horizontal approach rights ‘govern also relationships between private individuals and bodies’. Hunt ibid, 423.

151 The reasons for this classification are not, however, found in conventional methods of interpretation. The text of the Constitution does not indicate whether the freedom of political communication is positive or negative. Compare the First Amendment, which begins ‘Congress shall make no law …’ or its nearest equivalent in the Australian Constitution, s 116, which begins ‘The Commonwealth shall not make any law for the establishment of religion …’ As for structural implication from the text, (i.e., by the notion of what is ‘logically or practically necessary’ derived from the text) the argument could go either way. The freedom exists to protect institutions of representative and responsible government and, if it could be shown that government action was necessary to protect these institutions, the logic of the structural implication would entail that government action is required. Further, historical arguments, often deployed in support of the conclusion that American constitutional rights are generally negative (see, DeShaney v Winnebago County Department of Social Services 489 US 189, 196 (1989), cf Michael J Gerhardt ‘The Ripple Effects of Slaughter-House: A Critique of a Negative Rights View of the Constitution’ (1990) Vanderbilt Law Review 409) are also unhelpful in this case because the historical basis for the freedom is itself rather weak. The freedom of political communication is usually justified as an implication from the text that can be drawn from the text without reference to original understanding. See, Stephen Donaghue, ‘The Clamour of Silent Constitutional Principles’, (1996) 24 Federal Law Review 133. For an originalist critique, see Jeffrey Goldsworthy, ‘Constitutional Implications and Freedom of Political Speech: a reply to Stephen Donaghue’ (1997) 23 Monash University Law Review 362.

152 Negative rights can be seen as a manifestation of a preference for a negative concept of liberty. That is, a concept of liberty as freedom from interference. See generally, Susan Bandes, ‘The Negative Constitution: A Critique’ (1990) University of Michigan Law Review 2271, 2313-16. A famous argument for ‘negative liberty’ is found in Isaiah Berlin ‘Two Concepts of Liberty’ in Four Essays on Liberty (1969). Berlin’s feared that a ‘positive’ conception of liberty that would allow the state to intervene to achieve whatever that positive conception entailed and may then lead to totalitarianism.

153 Bandes, above n 148, 2317-23. See also, below n 151. Common law understandings about the nature of rights may be particularly significant for the interpretation of the Australian Constitution, given the close relationship between common law principles and the Constitution. See below nn 201-03 and accompanying text.

154 Geoffrey R Stone, Louis M Seidman, Cass R Sunstein, Mark V Tushnet, Constitutional Law 1693 (3rd ed. 1996): ‘[I]t is a commonplace that the commands of the Constitution are directed to governmental entitles, not to private parties’; James v Commonwealth (1939) 62 CLR 339, 362: ‘Prima facie a constitution is concerned with the powers and functions of government and the restraints upon their exercise.’ Though the rights protected by the Constitution of Ireland appear to be an exception. See Hunt above n 146, 428.

155 Sutherland Shire Council v Heyman (1985) 157 CLR 424, 501 (Deane J). See also, Archie v City of Racine 847 F. 2d 1211, 1213 (1988) (Easterbrook J): ‘it is possible to restate most actions as corresponding inactions wit the same effect and to show that inaction may have the same effects as a forbidden action.’ The law of negligence provides demonstrates the difficulty of this distinction because, just as constitutional rights are said to confer no obligations on the government to act, the law of negligence does not generally recognize liability for an omission unless that omission is taken within the course of some larger activity. See Francis Trindade and Peter Cane, The Law of Torts in Australia (3rd ed, 1999) 400.

156 Laurence Tribe, ‘The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence (1985) 99 Harvard Law Review 330, 331: ‘[W]hat appears at first to be merely a governmental 'omission' - for example, failure to fund therapeutic abortions for poor women accompanied by funding of childbirth procedures for the same women - might be regarded … as a deliberate, 'active' choice by government to discourage exercise of a negative individual right.’ See also, Seth F. Kreimer, ‘Allocational Sanctions: The Problem of Negative Rights in a Positive State’, (1984) 132 University of Pennsylvania Law Review 1293, 1295.

157 See, Tribe, above n 77, 1689, discussing controversial state action cases: ‘In these cases it is not so much the basic government action to which litigants object … Rather, the litigants objecting to the acts of private parties, sought to portray as support or tacit approval what might be characterized as mere governmental acquiescence in certain acts’.

158 DeShaney v Winnebago County Department of Social Services 489 US 189, 200 (1989). See, Estelle v Gamble 429 US 97 (finding that the 8th Amendment requires the state to provide adequate medical care to incarcerated prisoners); Youngsberg v Romeo 457 US 397 (1982) (14th Amendment due process requirement obliges the State the ensure the reasonable safety of involuntarily committed mental patients).

159 Bandes above n 148, 2284-84, Kreimer, above n 152; Tribe above n 152.

160 See DeShaney v Winnebago County Department of Social Services 489 US 189, 198 (1989): ‘within certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.’ For examples concerning the First Amendment’s free speech guarantee see, Schneider v State, 308 US 147 (1939) (city must expend resources to clean up litter rather than deny leafletters access to a public forum); Downie v Powers, 193 F 2d 760, 763-4 (1951) (police have duty to protect speakers from mob action).

161 See below n 163.

162 Brentwood v Tennessee 121 S Ct 924 (2000) (finding that a statewide association, incorporated to regulate interscholastic athletic competition among public and private secondary schools, engaged in state action when it enforced a rule against a member school because of the pervasive entwinement of public officials in the association’s activities).

163 Nearly all of the individual rights guaranteed in the United States Constitution contain a ‘state action’ requirement. That is, they can only be violated by some action of government. Notable exceptions are the Thirteenth Amendment’s prohibition on slavery and the constitutional right to travel, which can be infringed by government or private action. Civil Rights Cases 109 US 3, 20 (1883); Griffin v Breckenridge, 403 US 88, 105 (1971); Bray v Alexandria Women’s Health Clinic, 506 US 263, 297 (1993).

164 Burton v Wilmington Parking Authority 365 US 716, 724 (1961) finding that a coffee shop located in a government parking building could not operate in racially discriminate manner. The ‘symbiotic relationship’ of the private coffee shop and the government parking authority ‘indicate[s] that degree of state participation and involvement in discriminatory action which it was the design of the Fourteenth Amendment [equal protection guarantee] to condemn’. Compare Moose Lodge No 107 v Irvis 407 US 163 (1972) rejecting a claim that a private club’s racial discrimination violated the 14th Amendment because the club held a state liquor license.

165 Brentwood v Tennessee 121 S Ct 924, [26 – 27]; Reitman v Mulkey 387 US 369 (1961) finding a California state initiative allowing persons to sell, lease or rent real property in their ‘absolute discretion’ and thus not subject to state anti-discrimination laws effectively authorized racial discrimination. Compare Jackson v Metropolitan Edison 419 US 345, 357 (1974) rejecting an argument that the state authorized or approved an electricity utility’s termination of service policy even though the utility was subject to state regulation: ‘Approval by a state utility commission of such a request from a regulated utility, where the commission has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the commission into ‘state action.’.’ Flagg Bros v Brooks 436 US 149, 164 (1978) rejecting an argument that the proposed sale was attributable to the state because the state had authorized or encouraged the action by enacting the Uniform Commercial Code. The state’s role was ‘mere acquiescence’.

166 See Marsh v Alabama 326 US 501, 506 (1946) (holding that the owners of a company town could not abridge the First Amendment rights of residents: ‘Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.’); Evans v Newton 382 US 296, 301 (1966) (finding that a park created by trust was subject to the 14th Amendment could not be operated on a racially restrictive basis: ‘The service rendered even by a private park of this character is municipal in nature.’); but see, Hudgens v NLRB, 424 US 507 (1976) (upholding the right of the owners of a private shopping centre to exclude union picketers); Jackson v Metropolitan Edison Co 419 US 345, 352 (1974) (limiting a finding of state action to ‘the exercise by private entity of powers traditionally exclusively reserved to the state.’); Flagg Bros Inc v Brook 436 US 149, 160 (1978) (rejecting the argument that a bailor’s propose sale of goods pursuant to a bailor’s lien under the Uniform Commercial Code constituted state action. ‘This system of rights and remedies, recognizing the traditional place of private arrangements in ordering relationships in the commercial world, can hardly be said to have delegated to Flagg Brothers an exclusive prerogative of the sovereign.’)

167 Lange (1997) 189 CLR 520, 560 (emphasis added).

168 (1994) 182 CLR 104. Though rather unconvincingly, the Court took the position that it did not overrule Theophanous. Lange (1997) 189 CLR 520, 554.

169 Importantly, the Court does not simply reformulate the common law rule. Rather it regards the new rule as a constitutional rule that supplants the common law. ‘Because it derives from the Constitution the [newly recognized] defence is available in all Australian jurisdictions, whether the law to be applied is the common law or statute law. Its availability will inevitably have the consequence that the common law defence of qualified privilege will have little, if any, practical significance where publication occurs in the course of the discussion of political matters.’ Theophanous (1994) 182 CLR 104, 140.

170 Theophanous (1994) 182 CLR 104, 153-54.

171 (1997) 189 CLR 520, 566. It is not clear why ‘executive power’ is not included here. There is, however, clear authority for the application of the freedom to executive power. See text accompanying above n 141. See also, Levy v Victoria (1997) 189 CLR 579 considering the application of the freedom to Victorian regulations.

172 (1997) 189 CLR 520, 554-56.

173 (1997) 189 CLR 520, 564, citing McArthur v Williams (1936) 55 CLR 324, 347.

174 To some extent this was contemplated in the principal majority judgment in Theophanous: ‘the implied freedom is one that shapes and controls the common law. At the very least, development in the common law must accord with its content.’ (1994) 182 CLR 104, 126. However, as discussed above n 165, the majority went further than mere common law development, formulating a constitutional rule to apply to the common law.

175 (1997) 189 CLR 520, 571.

176 John Pfeiffer Pty Limited v Rogerson, (2000) 172 ALR 625, 644, 661. See also, Leslie Zines, The Common Law in Australia: Its Nature and Constitutional Significance (CIPL, Law and Policy Paper, 1999) 26.

177 See below nn 184-85 and accompanying text.

178 (1997) 189 CLR 520, 560.

179 Theophanous (1994) 182 CLR 104, 146.

180 Theophanous (1994) 182 CLR 104, 146.

181 Theophanous (1994) 182 CLR 104, 146 (emphasis added).

182 Theophanous (1994) 182 CLR 104, 148-49.

183 Theophanous (1994) 182 CLR 104, 148-49.

184 Remembering that in Australia the federal courts are not subject to the restrictions that prevent federal courts in the United States from deciding matters of common law. See below n 196 and accompanying text..

185 Courts in the Northern Territory and the Australian Capital Territory ultimately derive their authority from Commonwealth legislation passed under s 122 of the Constitution that confers legislative power on the territories. It is not necessary to consider here whether the freedom of political communication therefore directly qualifies the power that self-governing territories can confer on territory courts.

186 See Lange (1997) 189 CLR 520, 566-67. See also, Geoffrey Kennett ‘The Freedom Ride: Where to Now?’ (1998) 9 Public Law Review 111, 117. It is plausible to argue that the Constitution is concerned with governmental powers more generally but this merely makes my point. The uncontroversial proposition that the Constitution is concerned with the allocation and control of government power does not necessarily bring with it the conclusion that the Constitution does not apply to the common law. That conclusion depends entirely on how the common law is conceived and, as shown there is a strong argument, when courts enforce it, the common law should be seen as an exercise of government power in much the same way as legislative and executive action.

187 See for example, Supreme Court Act 1970 (NSW) s 23: ‘The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales’; See also, Supreme Court Act 1933 (ACT) s 23; Supreme Court Act (NT) s 14; Supreme Court Act 1995 (Qld) s 199, 200; Supreme Court Act 1935 (SA) s 17; Supreme Court Civil Procedure Act 1932 (Tas) s 6; Constitution Act 1975 (Vic) s 85; Supreme Court Act 1986 (Vic) s 10; Supreme Court Act 1935 (WA) s16.

(1994) 182 CLR 104, 153.

188 (1994) 182 CLR 104, 153.

189 See also Theophanous (1994) 182 CLR 104, 150 (Brennan J): ‘if it be implicit in the system that the people of the Commonwealth should be able to form and to exercise political judgments, it is implicit that government should not unnecessarily restrict their ability to do so ... Thus the powers of government are limited’ (emphasis added).

190 Sir Richard Buxton has made a similar argument with respect to the application of the Human Rights Act 1998 (UK) (which incorporates much of the European Convention on Human Rights in to English law) to the common law applied in disputes between individuals. Sir Richard Buxton argues that the European Convention on Human Rights and, therefore, the incorporation of it by the Human Rights Act creates rights only against governments (including a public authorities) and that as a result, the Human Rights Act has no effect on the common law. See, Sir Richard Buxton, ‘The Human Rights Act and Private Law’ (2000) 116

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