Australia: Freedom of speech and insult in the High Court of Australia

International Journal of Constitutional Law

Volumn 4, Issue 4, 2006, Pages 677-688

  Stone, Adrienne ^a   Evans, Simon ^b  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

^b University of Melbourne   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33749833729     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mol030     Document Type: Article

References (73)

1. Vagrants, Gaming and Other Offences Act, 1931, §7(1)(d) (Qld.).
2. Coleman v. Power (2004) 220 C.L.R. 1 [hereinafter Coleman].
3. Coleman was also convicted of assaulting two police officers who were acting in the execution of their duties. His appeal against those convictions was dismissed by all members of the High Court except Justice McHugh, either because they regarded §7(1)(d) as valid and applicable and, therefore, the conduct of the police officers in attempting to serve a notice on Coleman and arrest him for committing an offense under that section was lawful (Coleman at paras. 34, 303, 337) or (if §7(1)(d) was valid but inapplicable) because the conduct of the police officers was reasonable (id. at paras. 203-205, 267). Justice McHugh disagreed because he alone regarded §7(1)(d) as invalid (id. at paras. 128-144).
4. Justices Gummow, Kirby, and Hayne.
5. I.e., interpreted more narrowly to make it consistent with the Constitution.
6. Justice McHugh.
7. Chief Justice Gleeson and Justices Callinan and Heydon.
8. See, e.g., Simon Evans, Australia: Mandatory Administrative Detention, 4 Int'l J. Const. L. (I·CON) 517 (2006).
9. See Adrienne Stone, Australia's Constitutional Rights and the Problem of Interpretive Disagreement 27 Syd. L. Rev. 29 (2005).
10. Australian Capital Television Pty Ltd v. The Commonwealth (1992) 177 C.L.R. 106.
11. See, in particular, Theophanous v. Herald & Weekly Times Ltd (1994) 182 C.L.R. 104.
12. McGinty v. Western Australia (1996) 186 C.L.R. 140, 232-235 (McHugh J.); 291 (Gummow J).
13. (1997) 189 C.L.R. 520.
14. For a critique, see Adrienne Stone, The Limits of Constitutional Text and Structure, 23 Melb. U. L. Rev. 668 (1999).
15. Opinions are delivered seriatim in the High Court and decisions are commonly reached by plurality.
16. Coleman at paras. 195-199, 254-256, 260.
17. The case was complicated by a disagreement among the majority justices as to whether, as a matter of statutory construction, the law in question applied only where unlawful physical retaliation was either intended or reasonably likely. See Elisa Arcioni, Developments In Free Speech Law In Australia: Coleman and Mulholland, 33 Fed. L. Rev. 333 (2005). The disagreement can be put to one side, here, because all majority justices agreed that the freedom of political communication requires that a law prohibiting insult must be limited to such circumstances.
18. Coleman at para. 102.
19. See also id. at para. 237 (Kirby J.).
20. Id. at paras. 296, 299.
21. See also id. at para. 9 (Gleeson C.J.) and cf. para. 332 (Heydon J.).
22. See generally Stone, supra note 14.
23. Supra note 13, at 567.
24. Justice Kirby would prefer to use a test of "proportionality" because he regards the "appropriate and adapted" formula as "involv[ing] a ritual incantation, devoid of clear meaning": Coleman at paras. 234-236. In this context, however, "proportionality" appears to be functionally equivalent to "reasonably appropriate and adapted to":
25. see Lange, supra note 13, at 567
26. Mulholland v. AEC (2004) 220 C.L.R. 181 at paras. 32-39.
27. Coleman at para. 93 (McHugh J.)
28. para. 196 (Gummow & Hayne JJ.)
29. and paras. 234, 237 (Kirby J.).
30. Justice McHugh frames this portion of his judgment (particularly Coleman, at paras. 83-85) as a response to Stone, supra note 14.
31. See Stone, supra note 9.
32. Coleman at para. 9.
33. Coleman at paras. 9, 32.
34. Cf. id. at para. 296 (Callinan J.).
35. Id. at paras. 104-105.
36. Id. at para. 324.
37. See also id. at para. 299 (Callinan J.).
38. Id. at paras. 238-239.
39. Some passages in Justice Kirby's judgment suggests that he regards civility as an end of little weight rather than one that is illegitimate: See id. at para. 237 (where he characterizes the legislation as "intolerably over-wide") and at para. 256
40. cf. para. 105 (McHugh J.)
41. Lange, supra note 13, at 571-572.
42. Coleman at para. 199.
43. See, e.g., Wojciech Sadurski, Freedom of Speech Its Limits 179-224 (Kluwer Academic Press 2001)
44. Mari J. Matsuda et. al., Words that Wound: Critical Race Theory, Assaultative Speech and the First Amendment (Westview Press 1993)
45. James Weinstein, Hate Speech, Pornography and the Radical Attack on Free Speech Doctrine (Westview Press 1999).
46. It is notable that the chief justice has made an argument about the power of speech to intimidate in a context that is not limited to insults aimed at historically disadvantaged or vulnerable groups.
47. See Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution 74 Cal. L. Rev. 691 (1986).
48. Lange, supra note 13, at 572-573.
49. The formulations used by the various members of the Court varied but an element of deliberate offense appears to be common to all: Coleman at paras. 15-17, 64, 183, 226, 286-287, 314.
50. Cf. Washington v. Glucksberg, 521 U.S. 702, at 720-721 (1997).
51. Coleman at para. 244.
52. Thus Justice Heydon relies on established practice in dissent to support the challenged law. He observes that the law regulating insulting words "operates in an area in which discussion has traditionally been curtailed in the public interest, or as part of the general law": Coleman at para. 327.
53. Roger Douglas, The Constitutional Freedom to Insult: The Insignificance of Coleman, 16 Pub. L. Rev. 23 (2005).
54. Weinstein, supra note 32.
55. E.g., at one time it enabled judgments that certain conduct in the public sphere was "ungentlemanly," "unladylike," or "uppity."
56. Coleman at para. 330 (Heydon J.).
57. However members of the High Court appear not to be receptive to arguments about the distribution of speech opportunities and, rather formally, insist that this stance is mandated by the fact that the implication is of a freedom from government regulation of speech rather than of a right to speak: See Mulholland v. AEC, supra note 22, at paras. 188-190, 337.
58. See Lee Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (Clarendon Press 1986)
59. Vincent Blasi, Free Speech and Good Character, 46 UCLA L. Rev. 1567 (1999).
60. The influence of First Amendment thought is especially clear in the judgment of Justices Gummow and Hayne who cite Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), as indicative that certain, narrowly drawn categories of speech are unprotected by a principle of freedom of speech. Coleman at paras. 187-188.
61. Frederick Schauer, The Exceptional First Amendment, in Ameican Exceptionalism and Human Rights 29 (Michael Ignatieff ed., Princeton Univ. Press 2005).
62. Thus, we are not suggesting that Coleman indicates that the High Court of Australia will reject arguments for the regulation of other kinds of uncivil communication such as racist hate speech. On the contrary, the High Court has drawn the concept of political communication narrowly, so that racial and other forms of vilification may often be excluded from constitutional protection altogether. See Dan Meagher, What is 'Political Communication'?, 28 Melb. U. L. Rev. 438 (2004).
63. For example, even before Lange, the Court was reluctant fully to embrace New York Times v. Sullivan, 376 U.S. 254 (1974),
64. perhaps the canonical United States free speech decision. Even the invocation of the "fighting words" exception in Chaplinsky, supra note 47, in this case might be taken to demonstrate a greater willingness to uphold restrictions on freedom of speech. Though Chaplinsky has not been overruled, the U.S. Supreme Court has never since upheld a "fighting words" conviction. See Erwin Chemerinsky, Constitutional Law: Principles and Policies, 968-969 (Aspen Law & Business 2002).
65. For a review of some of the more striking cases, see Adrienne Stone, Rights, Personal Rights and Freedoms 25 Melb. U. L. Rev. 374, 378-383 (2001).
66. See Stone, supra note 14.
67. Australian Capital Television v. Commonwealth, supra note 10, at 184 (Dawson J. dissenting)
68. Jeffrey Goldsworthy, Implications in Language, Law and the Constitution, in Future Directions in Australian in Australian Constitutional Law, 150-184 (Geoffrey Lindell ed., Federation Press 1994).
69. See Stone, supra note 9.
70. Lenah Game Meats v. Australian Broadcasting Corporation (2001) 208 C.L.R. 199, 337-348 (Callinan J.)
71. Justice John D. Heydon, Judicial Activism and the Death of the Rule of Law 23 Austr. Bar Rev. 110, 123-124 (2003).
72. Coleman at paras. 289, 298, 301
73. cf. para. 33 (Gleeson C.J.).