High Court hedges bets on free speech

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Westboro Baptist Church member holds a sign that says 'Fags die God laughs'The Westboro Baptist Church dwells on the furthest extremities of the Christian right. Its tiny congregation believes God kills US soldiers to demonstrate his disapproval of the US's tolerance of gay people. It feels this belief is best propagated by staging inflammatory 'protests' at these soldiers' funerals.

One might expect that these sickening demonstrations would fall foul of US law. But in 2011 the US Supreme Court decided otherwise. It effectively decided that the church's right to freedom of speech trumped the right of families to farewell their loved one in peace.

Most Australians would no doubt declare 'Only in America'. But something similar almost happened here.

Over the last few years, radical Muslim cleric Man Haron Monis and his friend Amirah Droudis have written letters to the families of Australian soldiers who have died in Afghanistan, insulting the recently-departed soldiers' memories by, to take one example, referring to a soldier's corpse as the 'dirty body of a pig'.

These men were charged under a law that prohibits sending 'menacing, harassing or offensive' letters. They appealed the charge to the High Court by arguing that this law against sending offensive letters ran against the 'freedom of political communication' that is implied in our Constitution.

Noone used to think our Constitution had a right to freedom of speech in it. But in the 1990s, the High Court decided that in fact our Constitution necessarily implied that a certain amount of 'freedom of political communication' must be allowed.

The argument is that our Constitution clearly establishes a system of representative and responsible government, but you can't have that unless people know what the government is doing, who the candidates to be our representatives are, what those candidates stand for, and so on.

So our Constitution implies that there must be at least some freedom to communicate about political and government matters. Any law that unreasonably restricts that freedom is unconstitutional.

The freedom isn't absolute — only laws that unreasonably restrict the freedom are unconstitutional. But what's unreasonable? That's been a tricky and divisive question ever since this implied freedom was 'discovered'.

The early cases involved serious threats to political speech — a law that banned criticism of the Industrial Relations Commission, and laws that made it difficult for anyone except an established political party to run political advertisements. But over time, the freedom has been slowly developed and extended.

In this case, six High Court judges heard the case. Each of them applied the doctrines the Court has developed over the years for answering knotty questions regarding the freedom of political communication. In the end, three judges decided a law against sending offensive letters was an appropriate restriction on the freedom to communicate on political matters, while the other three decided that it was inappropriate and therefore invalid.

The unusual end result was a three-three 'tie'. When there's a tie, the law says the lower court's decision stands. A lower court had decided the law was valid. By reason only of that technicality, the law against sending offensive letters remained valid, and Monis and Droudis remained charged of that crime. The High Court came astonishingly close to a decision similar to the US Supreme Court's decision about the Westboro Baptist Church.

Retiring judge Dyson Heydon was one of the three judges who decided the law against offensive letters was unconstitutional and invalid. But he reached this conclusion begrudgingly, and felt compelled to comment that it was 'an outcome so extraordinary as to cast doubt, and perhaps more than doubt' on the freedom of political communication 'and the chain of reasoning which led to it'.

Close examination of the freedom 'may reveal that it is a noble and idealistic enterprise which has failed, is failing, and will go on failing'. But he was bound by existing law, and 'on the existing law, there is no alternative'.

'The law is supposed to be about justice — no, fairness,' said another great legal scholar, Darryl Kerrigan of The Castle regarding his own legal woes. 'I know that sometimes what is right and fair is not clear-cut, it's a bit iffy. But this is not iffy. This is as clear as day. It is right and fair that a family be allowed to live in its own house.'

Darryl's logic is instructive here. The implied freedom of political communication is certainly not clear-cut — it's as iffy an issue as one is likely to encounter. But what is not iffy is that a family should be protected from cruel letters insulting their dead child.


Patrick McCabe headshotPatrick McCabe works at an Adelaide law firm while completing a graduate diploma in legal practice. 


Topic tags: Patrick McCabe, freedom of speech, freedom of religion, Westboro Baptist Church, God Hates Fags


 

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Existing comments

Good one as always Pat. Common sense should be accepted as the guiding principle in law as in public sphere generally at all times and in all cases.
TJP O'Brien | 24 April 2013


Am I the only person to see a distinction-worthy difference between (a) publishing a view, even an offensive one, in a public forum, versus (b) tracking down the intended audience to their private home, or to a private gathering such as a funeral, to target them individually? The latter seems to me to verge on stalking, or the common-law tort of "watching and besetting". Respect for the privacy of the home and family life is enshrined in the UDHR/ ICCPR. Sending a personal letter by name has sinister overtones of being a threat ("we know where you live"), while physically turning up at a funeral to insult the dead runs a high risk of turning into a breach of the peace.
Tom R | 26 April 2013


The law is an ass indeed. I agree with Tom. Communication of a political nature needs to be free, but why should that apply to sending offensive and ugly letters to grieving families? If Monis and Droudis have an axe to grind let them grind it with the government who is sending the soldiers, not with the families who have lost them. It's cowardly behaviour and shouldn't be allowed.
Bernadette | 26 April 2013


Tom R. is spot on - any sensible jurisidiction would see the obvious difference between "political discourse" and sending insulting and distressing personal letters to bereaved families, or disrupting private funerals. This conduct has no political purpose, except insofar as (and shame on them too if they do) the media highlight these behaviours.
Barry Breen | 26 April 2013


Well written Tom R. A tolerant society respects free speech and the right to political comment which may be offensive to others, but it is not a universal freedom. We already have laws against slander, libel, bullying and false advertising and others that limit the implied right to free speech. This should be no different. What would the free speech position be if the families of these two repulsive characters started receiving the sort of mail they are sending out? Where is the humanity? They should make their political points to politicians and leave families who are already suffering to grieve in peace.
Brett | 27 April 2013


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