‘The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic,’ declared US Supreme Court Justice Oliver Wendell Holmes. He was explaining why the court had upheld a law making it an offence to distribute pamphlets calling on young men to resist conscription in the First World War. This was despite the First Amendment to the Constitution that ‘Congress shall make no law…. abridging the freedom of speech, or of the press…’.
These freedoms cannot be absolute. But why should Australians be subject to many more restrictions on free speech than Americans?
Australian media outlets are too frequently forced to refrain from revealing information we are entitled to know. Even following media ethics to the letter, publishing a story which leads to legal action can lead to significant financial loss and even closure. This should not happen in a mature democracy. It doesn’t happen in America. It worries editors and should worry writers, even of letters to the editor. They can be sued too.
Even after the appalling massacre in Christchurch there were calls for internet censorship. But the massacres of hundreds of millions under Hitler, Stalin and Mao Tse-tung occurred many decades before Sir Timothy Berners-Lee invented the World Wide Web.
Only last year the verdict against Cardinal Pell was suppressed. Readily accessible on the internet and widely discussed, it couldn’t be mentioned in the media under pain of serious punishment.
The reason given was to ensure a proposed but never-empanelled third jury would be untainted. But with the long and vicious media campaign, any juror would have already been affected.
In some states the solution is in judge-only trials. In America, a juror can be removed if after examination he doesn’t seem capable of rendering a fair and impartial judgement.
And while American judges readily accept criticism, sometimes even replying as the Chief Justice recently did to the President. But in Australia in 2017, federal Ministers Hunt, Sukkar and Tudge were forced to apologise for accusing Victorian judges of being ideologically driven ‘hard-Left activists’, soft on terror.
A refreshing change occurred in Australia in 1992 when the High Court found an implied freedom of political communication in the Constitution.
Although dismissed by some as more judicial activism, this ruling is consistent with the fundamental basis of our Commonwealth, that the powers of the Federal Parliament be strictly limited.
The court then allowed media defendants to use this freedom as a defence in two defamation actions.
The result was one media defendant didn’t have to prove the truth of a claim in a letter to the editor that an MP was biased in immigration matters. The other did not have to prove the truth of a claim by an MP that several other MPs had gone overseas on a ‘junket’.
Surely the media should be free to report such matters. They are in America; why not here?
This ended the practice of politicians using ‘stop writs’ to gag the press out of a fear that any damages would thus be significantly increased. It also stopped those politicians who outrageously boasted about their ‘Fairfax swimming pool’ or ‘Packer weekender’. The High Court thus performed a signal and lasting service for the nation.
But when the ABC then sought to use the defence in a case brought by the former New Zealand Prime Minister David Lange over corruption allegations, a divided High Court indicated it had decided to reconsider the issue.
I persuaded the then minimally- funded Australian Press Council that we could afford to intervene if I drafted the submissions and obtained leave to appear as an amicus curiae, a friend of the court. The Court generously granted leave, subsequently handing down a rare unanimous judgment in 1997. Under this the freedom remained, but the defence sadly disappeared.
But legislation unreasonably infringing freedom of political communication will still be declared unconstitutional.
That’s why it is a pity that there was no appeal to the High Court in the Andrew Bolt case to test the constitutionality of that infamous section 18C of the Racial Discrimination Act, 1975.
The High Court remains Australians’ only possible protection if the politicians introduce more restrictions on speech or the media, as are seriously proposed about ‘transphobia’ or ‘climate denial’.
Much, of course, will depend on the court’s composition. As with Republican administrations prior to President Trump, Australian Coalition governments rarely check the constitutional philosophy of their appointments. The one exception was Justice Ian Callinan, probably the greatest federalist to sit there since the Founding Fathers.
In the meantime, instead of rolling over, media corporations should use both the criminal and civil law to stop those minuscule cells of activists, such as Sleeping Giants, who represent themselves to media advertisers as the voices of vast numbers of customers. This they do for the sinister purpose of gagging some usually conservative commentator.
As to our defamation law, it is still too easy for the rich and powerful to stop the publication of matters of legitimate public interest, bearing in mind that this does not extend to all matters which may be interesting to the public, such as the sex lives of celebrities.
So does the US have something to teach us? Since 1964 the Supreme Court has developed what has become a ‘public figure’ defence.
Under this, politicians, celebrities and even involuntary public figures are not protected at all, even from lies, manufactured stories and invented scandals. Following the highly-defamatory reporting by the mainstream media about students from the Covington Catholic School, will a child be deemed a public figure retrospectively?
Rather than our adopting the US public figure defence, a compromise would be to adopt a similar defence, but only within the limited field of political communication.
This could be achieved through a defence requiring that in matters of political communication, a plaintiff must show that the media outlet knew that the defamatory statement was false or had acted in reckless disregard of its truth or falsity. This would at last ensure that Australians would be significantly better- informed.
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