Canbulat, Ali Tolga --- "The Right To Hate: Perils Of Expansive Constitutional Protections For Speech" [2023] UNSWLawJlStuS 1; (2023) UNSWLJ Student Series No 23-1

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THE RIGHT TO HATE: PERILS OF EXPANSIVE CONSTITUTIONAL PROTECTIONS FOR SPEECH

TOLGA CANBULAT

I INTRODUCTION

The rise in hate speech, including from celebrity figures such has Kanye West and Andrew Tate, has ignited a divisive global debate surrounding the scope of free speech and its limits. In Australia, such questions have arisen during a time of national soul-seeking, as our relationship to the United Kingdom is once again being considered and fresh campaigns to reimagine rights protections have emerged.

Many Australians understandably regard the protections offered United States’ Bill of Rights with a sense of allure. Perhaps most alluring is the First Amendment’s express right to speech, deemed by many as the ultimate bulwark against government intrusions on speech. However, the breadth of protection granted by the First Amendment has resulted in a remarkable outcome: the voicing of even the most extreme forms of hate speech has become a constitutionally protected right. Accordingly, State and Federal legislatures in the United States are almost powerless in combatting even the most extreme forms of hate speech, such as Nazism. Proponents of such protections argue that hate speech is the cost paid to ensure that free speech is not unduly diminished. Is such a view correct? Is more speech inherently better than less speech?

This article explores that question and its implications for the protection of speech in Australia. It begins by tracing the common historical origins and the normative rationales shared by both the United States and Australia to determine why free speech is fundamentally valued. It then contrasts the jurisprudence of each in relation to their constitutional protections for speech, including hate speech. The article will then lay out an account for why hate speech should be regulated and compare the extent to which that has been able to occur in the United States and Australia as a result of their respective constitutional protections for speech. Finally, it will conclude by providing some observations that Australia should draw upon in informing the future of rights protection in relation to speech.

II ORIGINS – A COMMON PROVENANCE AND SHARED NORMATIVE RATIONALES

The mutual descent of the United States and Australia from the British Empire meant that both inherited significantly from English legal norms, culture, and philosophy. Of these influences, one of the most important was the tradition of civil and political liberalism.^[1] In Europe, liberal philosophy emerged as the consequence of a centuries long struggle against powerful monarchs, ultimately revolutionising the legal, political, social and economic landscape of the continent. In doing so, the object of liberalism was to create a society in which people were free and equal agents,^[2] which was seen as being attained by ‘negative liberty’, meaning an absence of constraint.^[3]

Liberalism, and its negative conception of freedom, strongly informed the early development of free speech. These influences can be seen in the seminal articulation of free speech in John Milton’s 1644 polemic Areopagitica.^[4] Composed during the English Civil War, it protested against the pre-publication licensing requirements which existed under the Licensing Order and prohibited publication without review from a government censor.^[5] Milton advanced a number of arguments for the protection of free speech, including that the censors were an unjustified incursion by the Roman Catholic Church, that licensing was infeasible, and that censors discouraged learning.^[6] A critical protection for free speech first came with the English Bill of Rights in 1689 which followed the Great Revolution,^[7] granting the ‘freedom of speech and debates’.^[8] Whilst its scope was limited to Parliament,^[9] it allowed the discussion of issues freely, enlivening debate in Parliament and insulating from attempts by the Crown to limit the scope of debate to be had.

Contemporary accounts underpinning the normative rationales for protecting free speech relate more to the ideals which liberal democracies strive to reach. These justifications can be distilled into three broad rationales,^[10] being the attainment of truth, self-determination, and democracy.^[11] Whilst no rationale is capable of independently explaining the importance of free speech in isolation, together they provide a compelling account of the importance of free speech.

The truth rationale for speech asserts that truth is best discovered by having an open ‘marketplace’ of ideas in which they compete for acceptance,^[12] a metaphor famously brought about by Justice Holmes’ decision in Abrams.^[13] The democratic rationale is an oft-cited justification for protecting free speech, with many regarding it as one of the most fundamental enablers of democratic participation and for its ability to hold power to account.^[14] Finally, the self-determination rationale ascribes an intrinsic value to free speech derived from one’s ability to be autonomous and free.^[15]

Understanding the rationales for protecting free speech is crucial in determining how speech should be protected and what restrictions, if any, should be placed on the right – including those targeted towards hate speech. Before turning to that question, this Article will examine how United States and Australian jurisprudence has treated free speech respectively.

III THE UNITED STATES RIGHT – THE FIRST AMENDMENT

The First Amendment to the United States Constitution provides that ‘Congress shall make no law abridging the freedom of speech, or of the press’.^[16] Whilst such a formulation appears strictly absolutist in its terms, narrowly defined exceptions have been read into the right. Defining the boundaries of the First Amendment is best accomplished by examining the exceptions to the otherwise seemingly unqualified right found in the text of the Constitution. Exceptions to the First Amendment have been long recognised in several ‘categorical’ areas, with notable examples including speech constituting defamation, intellectual property infringement, espionage, or speech amounting to fraud.^[17]

However, the Supreme Court’s jurisprudence has emphasised that is significantly less open to find exceptions to the First Amendment’s right to free speech in cases where the restriction on speech is content-based, referring to laws which seek to regulate speech based on the substantive message seeking to be conveyed.^[18] By their very nature, hate speech laws fall under this category of speech.

A seminal case establishing the Supreme Court’s position on hate speech under the First Amendment was Brandenburg v Ohio.^[19] Here, the Court overturned the earlier 1927 case of Whitney v California,^[20] and struck down an Ohio syndicalism law used to convict Ku Klux Klan members attending a televised rally on the basis that such speech incited terrorism. The Court held that the First Amendment right could only be abridged in circumstances where there was an ‘incitement to imminent lawless action’.^[21] The exception to the protection of hate speech in the First Amendment, as formulated in Brandenburg, was expanded, albeit only marginally, in Virginia v Black.^[22] In Virginia v Black, the Court decided that although a universal prohibition on cross burning (as in the facts of the case) was not compatible with the First Amendment,^[23] prohibitions on cross-burning could be compatible with the First Amendment, where such prohibitions only dealt with speech which by its ‘very utterance’ could ‘inflict injury’ (citing the earlier cases of Chaplinsky v New Hampshire and R. A. V. v City of St. Paul),^[24] or show an intent to commit imminent lawless action.^[25] As such, Black holds that the First Amendment does not protect speech that is a ‘true threat’, where the speaker has the intent of placing the victim in fear of bodily harm or death.^[26] Accordingly, Black supports a slightly wider interpretation of the exceptions to the First Amendment’s otherwise very narrow approach to hate speech exceptions.

IV THE AUSTRALIAN RIGHT – THE IMPLIED FREEDOM

Unlike the United States, the Australian Constitution does not expressly protect free speech. Whilst drafters of the Australian Constitution were closely familiar with the United States’ preference for express protection of rights, this form of rights protection was purposefully rejected by the Australian framers.^[27] Instead, the drafters embraced Diceyan English legal traditions, preferring to focus on parliamentary sovereignty and principles of representative and responsible government which were viewed as a superior mode of rights protection.^[28]

A Development and Scope

Although the Australian Constitution contains no express right to speech, the High Court has found a narrower freedom implied in the structure of the Constitution, being the implied freedom of political communication.^[29] The origins of the implied freedom can be traced to the judgments of Murphy J in Ansett Transport and Miller v TCN,^[30] in which Murphy J supported untested claims that the Constitution contained such a right by implication. Murphy J’s decision points to the democratic and truth rationales for free speech extensively, stating that an implied freedom was ‘necessary for the proper operation of the system of representative government at the federal level’^[31] and that it was not just an important ‘individual freedom’,^[32] but a ‘necessary corollary of the concept of the Commonwealth of Australia’.^[33] Murphy J’s findings were rejected by the Court on the basis that it would overlap with s 92’s express guarantee of interstate freedom of communication.^[34]

The implied freedom was ultimately accepted little over a decade later in the cases of Nationwide News v Wills and Australian Capital Television v Commonwealth.^[35] In both cases, decided a day apart, the implied freedom was recognised, with the Court holding that it was necessary to sustain Australia’s system of representative government which underpinned the Constitution.^[36] The currently accepted test of whether a measure impinges on the implied freedom comes from the decision of Lange,^[37] as later modified in Coleman.^[38] These decisions affirm that unlike the First Amendment, the implied freedom has a narrower scope such that it is limited to political communication, and importantly, is a negative right as opposed to a positive individual right.^[39] Accordingly, measures which curtail speech, including those that pertain to hate speech, may be permissible, so long as they are compatible with a system of representative and responsible government and are ‘reasonably appropriate and adapted to achieve that legitimate end’,^[40] factoring in a proportionality test which considers whether the measure is ‘suitable’, ‘necessary’, and ‘adequate in its balance’.^[41] This approach accords strongly with the truth and democracy rationales for free speech. The constitutionality of Australian laws dealing with hate speech laws specifically will be turned to later.

V THE CASE FOR REGULATING HATE SPEECH

Hate speech is a broad term which can be defined by reference to three attributes.^[42] Firstly, hate speech is directed towards an easily identifiable, but arbitrary and normatively irrelevant feature.^[43] Secondly, hate speech attaches attributes recognised as highly undesirable to that identified group.^[44] Lastly, hate speech views its targets as inferior and deserving of hostility.^[45]

Regulating speech for any reason is bound to arouse the fear of government overreach in many, and the regulation of hate speech is no exception. Such concerns are expected due to the public’s cognisance for the significance of free speech and the formidable justifications underlying its protection. However, it is also clear that an entirely unqualified right to freedom of speech is untenable. For one, the right must necessarily be balanced in many cases with competing and equally important rights and interests. Secondly, normative justifications for protecting free speech show that some restrictions on speech may augment, rather than dilute, the rationales underlying the protection of free speech, including those of democracy, truth, and self-determination.

A Constitutive and Consequential Harms

Justifications supporting the regulation of hate speech can be advanced by reference to both the constitutive harms (i.e., those which are immediate and direct) and consequential harms (i.e., those which have broader implications and are indirect) that arise as a result of hate speech.^[46]

Whilst an important freedom, free speech is capable of being directly at odds with the rights and interests of others, pointing to the need of striking a balance where these rights and interests compete. Outside the hate speech context, this has been recognised to varying degrees in both Australia and the United States. For instance, defamation is a cause of action in both jurisdictions which functions as a restraint on speech in order to balance the right to freedom of speech with the interest of preserving the reputation of those attacked by false statements. Likewise, copyright limits the exercise of free speech to protect authors’ rights to their work.

The constitutive harms of hate speech are significant and warrant impositions on speech, where such speech sufficiently injures those it is directed towards. Empirical studies have been used to show far-reaching, demonstrable harms to individuals, including severe emotional harm, an undermined sense of dignity, power imbalance, victimisation, fear, and the feeling of having been silenced.^[47] The severity of such harms should warrant recognition as serious interests which necessitate a legal response. Indeed, many of the constitutive harms engendered by hate speech directly offend the very rationales which free speech advocates pursue. Democratic participation is impaired as victims of hate speech may be silenced or are too intimidated to associate with target groups. Truth is undermined, because, by definition, hate speech attempts to legitimatise attacks on individuals based on arbitrary qualities such as race, nationality, gender identity, or sexual orientation. Finally, the self-determination of victims is imperilled where they are prevented from identifying with, or publicly expressing, the qualities targeted by hate speech.

The consequential harms caused by hate speech are equally sombre and include the persuasion of others to believe negative stereotypes and the legitimisation or normalisation of further discrimination and hate speech.^[48] As Jeremy Waldron argues, hate speech not only affects the individuals it is directed towards, it is capable of undermining democracy entirely due to the social and political continuance of democracies fundamentally requiring ‘its members are respected in their character as equals, and accorded the authority associated with their vote and their basic rights’.^[49]

B Formal and Substantive Freedoms

Contrasting the position in the United States and the Australia shows a preference for the protection of means in the former and the attainment of substantive ends in the latter. The fixation of First Amendment jurisprudence is clearly on the conception that guaranteeing protection for as much speech as possible is the best means of promoting rights.^[50] This argument, known as the counterspeech doctrine, is a common rebuttal against hate speech laws and was famously injected into First Amendment jurisprudence by Justice Brandeis in Whitney v California,^[51] where he opined that ‘the remedy to be applied is more speech, not enforced silence’.^[52]

A conception of rights protection relying squarely on the formal protection of the means to free speech may fail to acknowledge that speech, as well as the advancement of other fundamental rights and interests, may be protected more substantively by imposing qualifications. Such a view can be attained through Australia’s implied freedom, whose fixation is in the attainment of a system of representative and responsible government as opposed to the maximisation of negative rights protection provided for by the First Amendment.

A recent example which underlines the need to delineate between formal and substantive freedoms was the 2017 ‘Unite the Right’ rally, in which hundreds of white nationalists, Ku Klux Klan members, and neo-Nazis gathered together in Charlottesville, Virginia.^[53] Those organising and attending the rally were legally protected under the First Amendment. Counter-protestors opposing the extremist groups were at the rally, but violence quickly ensued – including a white supremacist using a car to ram the counter-protestors, killing one and injuring 19 others.^[54] The Charlottesville rally demonstrates how the potential for violence, intimidation, or extreme emotional and psychological distress may effectively silence those opposed to hate speech, explaining why those who argue along Brandeis’ lines of the idealised counterspeech doctrine fail to provide a convincing account of rights protection, which is exacerbated by the fact that hate speech is typically directed to already vulnerable and marginalised groups within society.

VI REGULATING HATE SPEECH IN AUSTRALIA

Australia has enacted numerous laws dealing with hate speech at both the state and federal levels. At the state level, the most notable examples are state vilification laws and recent measures to prohibit the public display of Nazi symbols. Examples at the federal level include part IIA of the Racial Discrimination Act and the prohibition of violent abhorrent material in the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act.^[55]

A Commonwealth Racial Discrimination Act

Part IIA of the Racial Discrimination Act (‘RDA’) makes it unlawful to do an act in public which is reasonably likely to ‘offend’, ‘insult’, ‘humiliate’ or ‘intimidate’.^[56] Importantly, part IIA does not create a criminal offence, but is instead a civil provision which grants individuals from the targeted group the ability to seek conciliation at the Human Rights Commission.^[57] Failing a successful resolution at the Commission, individuals are able to take the matter to the Federal Court for adjudication.^[58]

After decades of relatively uncontroversial operation, the RDA attracted significant criticism following the decision in Eatock v Bolt, ^[59] in which the provisions were used against the political commentator Andrew Bolt, who wrote an opinion piece in the Herald Sun contending that pale-skinned Indigenous Australians were falsely identifying as such as a pretext for political or financial gain.^[60] The outcry following the decision in Bolt was so pointed that an inquiry was launched to examine whether ss 18C and 18D of the RDA and the operation of the Commission were compatible with free speech.^[61] Interestingly, such calls for free speech resembled notions more closely akin to First Amendment jurisprudence, rather than Australia’s implied freedom.

The controversy surrounding the alleged infringement of free speech under the RDA following the decision in Bolt was fuelled primarily by concerns that the RDA’s threshold of ‘offend’ or ‘insult’ were too low, thereby inviting undue interference and allowing the Commission and courts to chill speech.^[62] However, such criticisms failed to account for the earlier case of McGlade v Lightfoot, in which it was held that the words ‘insult’ and ‘humiliate’ required showing that the effect of the words rose to ‘profound and serious effects’.^[63]

A crucial protection embedded within the RDA to prevent it from unduly restricting the freedom of speech and insulating its provisions from constitutional challenge is section 18D which provides a number of defences. The most important of these defences is s 18D(c), which provides a defence for those making a fair and accurate report of any event or matter in the public interest or a fair comment of any event or matter of public interest if it is a genuine belief of the person making the comment.^[64] This ensures that political commentary is not impinged by the RDA, a notion explicitly underlined by the RDA’s Explanatory Memorandum, which asserts that the ‘media is entitled to report events as they happen’,^[65] including in relation to sensitive matters, providing native title and migration policy as two examples.^[66]

Whilst it was held that s 18D defence did not apply in Bolt as Bolt was found to have made intentionally false assertions,^[67] doing so egregiously and with the motive of promoting racial prejudice against pale-skinned Indigenous Australians, Bromberg J highlighted that the decision should not be taken as imposing a restriction on the ability to communicate about controversial issues such as those discussed by Bolt.^[68] Indeed, Bromberg J confirmed that Bolt contravened the RDA not merely because of the subject matter he dealt with,^[69] but because of the manner in which he dealt with it – failing to act in good faith, provide relevant facts and his use of strong and emphatic mockery.^[70] Moreover, the orders in Bolt did not require the deletion of the article, only that it be archived and a disclaimer stating it had contravened the RDA be placed on the article.^[71] In reaching a decision, Bromberg J not only referred to the words contained in the RDA, but also pointed extensively to the value of free expression and Parliament’s intention to not curtail the right.^[72] However, the right necessarily needed to be balanced with limits to prevent its abuse.^[73] Notably, Bromberg J also highlighted the distinction between formal and substantive freedoms, pointing to the three rationales of free speech (truth, democracy and self-determination) and finding Bolt’s coverage diminished the ability of pale-skinned Indigenous Australians to identify as such, such that Bolt in fact contravened their right to expression.^[74] Accordingly, the decision in Bolt demonstrates how the RDA is effective in mitigating the harms associated with hate speech, whilst promoting the truth, self-determination and democratic values associated with free speech. In so doing, Bolt shows the capacity for legislative response to balance competing interests in a manner in which the First Amendment would disallow.

Whilst the constitutionality of the RDA has never been tested in the High Court, its provisions would likely succeed in being deemed both appropriately adapted and serving the legitimate end of eliminating racial vilification. Moreover, as discussed below, state racial vilification laws have been found to not impinge the implied freedom in several courts, adding to the strength of such claims.

B State Vilification Laws

All states and territories in Australia have vilification laws, albeit with varying frameworks. The provisions in each state consist of civil complaints-based processes broadly like those created by the RDA.^[75] State vilification laws have been the subject of less controversy, presumably due to the wording of the provisions as the thresholds of ‘incite hatred towards’, ‘serious contempt for’, ‘severe ridicule of’ appear higher than those of ‘insult’ and ‘offend’^[76] as found in the RDA. However, in practice the thresholds are not significantly different given McGlade reading-in a requirement of ‘profound and serious effects’^[77] under the RDA’s civil penalty provision.

Whilst the RDA only applies to racial vilification, state laws outlaw vilification on the basis of many other grounds. For instance, the NSW Anti-Discrimination Act extends to vilification on the basis of whether a person is transgender, the sexual orientation of the person or their HIV/AIDS status.^[78] Tasmanian prohibitions extend to disability and intersex identity.^[79] The breadth of such responses demonstrates the ability of the legislature to respond to particular attributes that are being targeted by hate speech and mitigate speech directed towards those targets that is merely intended to arouse serious contempt, hatred or ridicule. Such laws therefore promote free speech whilst upholding democratic values, improving the truth-finding process, and promoting the self-determination of marginalised groups. Again, such provisions would almost certainly be deemed incompatible with the First Amendment, preventing such measures from being instituted in the United States.

Like the RDA, the constitutionality of a state vilification law has never been tested by the High Court. However, the Federal Court,^[80] Victorian Court of Appeal,^[81] New South Wales Court of Appeal,^[82] have all held that racial vilification laws do not conflict with the implied freedom as they are appropriately adapted to the legitimate end of preventing vilification. This appears to be a sound line of reasoning that accords with the implied freedom.

C Prohibitions on Nazi Symbols

New South Wales and Victoria have both introduced prohibitions on the public display of Nazi symbols. These prohibitions deviate from broader vilification laws in that they target speech that relates to a type of ideology identified as being necessarily hateful.^[83] Both states make it a criminal offence to intentionally display Nazi symbols publicly and without a reasonable excuse and good faith.^[84] These laws clearly share some overlap with federal and state vilification laws, however since they are criminal offences with more easily distinguished elements, they would be able to readily be enforced, including by police officers assisting in the immediate breakup of public hate speech or rallies, such as those that occurred in Charlottesville, in which Nazi symbols were used as a forceful intimidation tactic.

These measures demonstrate a sensible balance between protecting free speech whilst balancing the legitimate interests of target groups. The display of Nazi symbols is deemed to be reasonable and in good faith where it is done so for academic, artistic, educational or other purposes in the public interest.^[85] Importantly, in both New South Wales and Victoria these offences have an explicit carve-out for the use of the swastika in relation to Buddhist, Hindu or Jain religious beliefs.^[86] The general public interest defence in New South Wales and the broad religious protection provided for under the Victorian Act will likely provide protection for the use of religious symbols that have been traditionally used by adherents of other religions, such as Pagans, whose symbols were exploited by Nazis.^[87]

Laws outlawing Nazi symbols have yet to sustain a constitutional challenge. However, preventing public rallies by Nazis, whose primary ideological belief is that of violent racial supremacy, should be deemed a legitimate end, and prohibiting the public display of such symbols would likely be found appropriately adapted to that purpose.

D Prohibition on Violent Abhorrent Material

A Commonwealth response directed towards combatting hate speech, as well as other broader aims, is the prohibition on violent abhorrent material. The prohibition on violent abhorrent material was introduced in 2019 as an amendment to the Commonwealth Criminal Code.^[88] The prohibition was introduced following the 2019 Christchurch Mosque shooting, in which the perpetrator of the shooting filmed and published the shooting live using social media.^[89] The perpetrator was known to have disseminated violent hate speech relating to the ‘great replacement’ conspiracy theory on the internet leading up to their actions and sought to have the film further disseminated as encouragement for further violence.^[90]

The violent abhorrent material prohibition creates offences for services who host content, are served a notice by the eSafety Commissioner, and fail to take down the content.^[91] The Explanatory Memorandum states that the law seeks to respond to the sharing of such videos being ‘abused by extremist perpetrators to amplify their messages’.^[92] As affirmed by the Explanatory Memorandum, these laws are intended specifically to counteract extreme content featuring acts such as rape or murder, whose publication may serve to promote violent acts and denigrate the ‘dignity’ of sections of the community.^[93] Whilst the prohibition evidently limits speech, it is clear that such limits serve to promote democratic values and self-determination.

VII REGULATING HATE SPEECH IN THE UNITED STATES

In contrast to the position in Australia, the United States has largely been unable to legislate in response to hate speech due to the First Amendment’s expansive protection against restrictions on speech. Only where the legislative measure is confined to the types of exceptions defined in Brandenburg or Black, such as incitement to imminent lawless action or true threats, can legislative action be congruent with the First Amendment.

In practice, the only way in which responses to hate speech have survived in the United States is incidentally, through legislation targeting hate crimes. However, it is crucial to note that such crimes penalise conduct rather than speech.^[94] Whilst this distinction may be blurry,^[95] the way in which such responses have been enacted is to create separate offences or increasing penalties where the motivation for crimes is some kind of bias or hatred of the target due to some specified attribute.^[96] These hate crime laws form a patchwork of state-based provisions which differ greatly in their scope and application.^[97] Some states have enacted wide-reaching provisions which create separate criminal offences for a range of crimes where an element is the motivation of bias (on different attributes covered by the law), including where the crime is violent, intimidatory or seeks to vandalise a place because of the attributes of those who visit the place (e.g., religious buildings).^[98] Some states also provide victims with the ability to pursue civil remedies against their attackers.^[99]

Whilst these laws have attracted some criticism from some First Amendment scholars as being tantamount to punishing hate speech,^[100] Chief Justice Rehnquist expressly rejected this view in Wisconsin v Mitchell, holding that laws targeting hate crimes did not punish speech,^[101] instead they only prohibited conduct, which is not protected under the First Amendment.^[102]

Federal examples of hate crimes exist such as offences against federally protected activities under Title 18 of the United States Code,^[103] which makes it an offence to wilfully injure, intimidate or attempt to do the same on the basis of a person’s race, colour, religion or national origin.^[104] However, as noted, such offences only prohibit conduct, not speech.

VIII LESSONS FOR AUSTRALIA

Australia’s implied freedom of political communication has been effective in providing the necessary scope to regulate speech, such that positive inroads have been made, and can continue to be made, in addressing the problem of hate speech. By contrast, the First Amendment has not only failed to allow the problem of hate speech to be addressed, but it has also conferred upon it the ultimate legal fortification: constitutional protection. However, dismissing the First Amendment on account of its rigidity and failure to address hate speech should not deter further conversations regarding how free speech, as a normative value, may be better protected in Australia. The United States’ experience should serve as a cautionary and illuminative reference point.

It is clear that there is scope for the further advancement of free speech in Australia. For instance, outside the hate speech context, the First Amendment’s protections have been seen as foundational to empowering movements such as ‘#MeToo’, allowing victims to share their experience of sexual assault freely due to the First Amendment’s relationship to defamation, particularly in relation to allegations made against public figures.^[105] These protections demonstrate that the First Amendment does have the capacity to create positive outcomes, with the formidableness of its protection making it extremely difficult to override. However, that rigidity is also capable of creating perverse outcomes, most notably the inability of the legislature to respond in any meaningful capacity to hate speech.

Protecting free speech in Australia will require some degree of compromise between the inflexibility engendered by express rights protections and the flexibility afforded by notions of parliamentary sovereignty. One solution that has been attempted for decades but has now found renewed calls for support is a federal statutory bill of rights.^[106] A statutory bill of rights may assist in bolstering free speech in Australia whilst working to achieve a representative system of government which remains responsive to the social values and needs of society. Unlike the United Sates’ constitutionally entrenched Bill of Rights, a statutory bill of rights could be overridden by Parliament. Whilst this outcome has obvious limitations, the ability to maintain a degree of flexibility offers important benefits in respect of rights such as the freedom of speech where the exercise of such rights may need to be balanced with competing interests, societal values, and rights – as demonstrated by the issue of hate speech. Moreover, the ability to adjust hate speech laws to reflect changing societal needs is clearly a benefit of such an approach, as examples such as the state vilification laws and the recent ban on violent abhorrent material show how restraints on hate speech must be afforded the flexibility needed to allow careful responses to changing needs. Lastly, as suggested by Michael Kirby extrajudicially, the genius of a statutory bill of rights lies in the fact that it would encourage a more rights-based interpretation of laws, thereby acting to ‘strengthen and not weaken the democratic elements in our system of government’.^[107]

Finally, it is important to note that Australia’s constitutional framework relies on an implied right, whose boundaries are still being demarcated and tested by the courts to a much more substantial degree than the long-established, express right contained enshrined in the First Amendment. Whilst not related to the issue of free speech, the United States case of Dobbs v Jackson Women’s Health should serve as a warning for how changing judicial approaches may extinguish implied constitutional rights previously assumed to exist.^[108] Similar doubts have been cast on the implied freedom in Australia by some members of the bench. Heydon J in Monis argued that the implied freedom was a ‘philosophical bullet point’ whose uncertainty gave ‘courts virtually untrammelled power’.^[109] Similarly, Steward J in the recent case of LibertyWorks proposed extensive arguments suggesting that the implied freedom should be overturned.^[110] Whilst such arguments remain a fringe view, the possibility that the implied freedom may one day be reimagined or extinguished altogether by shifting judicial approaches to the Constitution should be kept in mind. This risk further strengthens calls for a statutory bill of rights, such that the protection of critical rights can continue through support that is external to the judiciary.

IX CONCLUDING REMARKS

The United States Constitution begins with the words ‘we the people’, emphasising the notion that the powers of government derive from the will of its constituents. As a colonial subject forced to wage war against an oppressive colonial overlord at the advent of the enlightenment and liberalism, the framers of the United States Constitution saw the need to create strongly entrenched political, social, and economic freedoms – including the right to free speech. The First Amendment now gives groups such as neo-Nazis and white supremacists, who oppose values inherent to democracy and free speech total constitutional protection. With the inability of the legislature to restrain such speech in almost all circumstances, the extent to which the Constitution reflects the will of the people becomes doubtful.

In contrast, the framers of the Australian Constitution rejected a United States-style Bill of Rights, opting for a structurally significant constitution whose primary purpose is in maintaining representative government. This has enabled Australia to successfully respond to hate speech, allowing it to more effectively balance free speech with other competing interests and formulate well-adapted responses to the issue of hate speech. The precise scope of the protections afforded by the implied freedom are still evolving. During this time, the purpose and scope of free speech protections in Australia, as well as the means to protect it should continue to be carefully considered. A statutory bill of rights may augment Australia’s success in dealing with issues like hate speech whilst further supporting the freedom of speech more broadly.

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^[1] George Williams, Sean Brennan and Andrew Lynch, Blackshield and Williams Australian Constitutional Law and Theory (Federation Press, 7^th ed, 2018) 7–90.

^[2] Jason Brennan and John Tomasi, ‘Classical Liberalism’ in David Estlund (eds), The Oxford Handbook of Political Philosophy (Oxford Academic, 2012) 115.

^[3] Ibid 120.

^[4] John Milton, Areopagitica: A Speech of Mr John Milton for the Liberty of Unlicensed Printing, to the Parliament of England (Oxford University Press, 1875).

^[5] John Leonard, The Value of Milton (Cambridge University Press, 2016) 1–21.

^[6] Ibid.

^[7] Bill of Rights 1689 (UK), 1 Wm & M 1 sess 2, c2.

^[8] Ibid art 9.

^[9] Ibid.

^[10] Joyce et al, Media Law (Oxford University Press, 3^rd ed, 2022) 20.

^[11] Ibid 20–24.

^[12] Daniel Ho and Fredrick Shauer, ‘Testing the Marketplace of Ideas’ (2015) 90 New York University Law Review 1160.

^[13] Ibid; Abrams v United States, [1919] USSC 206; 250 US 616, 630 (1919).

^[14] Media Law (n 8) 24.

^[15] Ibid 25.

^[16] United States Constitution amend I.

^[17] Victoria Killion, The First Amendment: Categories of Speech (Congressional Research Service, 2019).

^[18] James Weinstein, ‘An Overview of American Free Speech Doctrine and its Application to Extreme Speech’ in Ivan Hare and James Weinstein (eds), Extreme Speech and Democracy (Oxford University Press, 2009) 81–91.

^[19] Brandenburg v Ohio, [1969] USSC 139; 395 US 444 (1968).

^[20] Whitney v California, [1927] USSC 129; 274 US 357 (1927).

^[21] Brandenburg v Ohio (n 19), 449.

^[22] Virginia v Black, [2003] USSC 2763; 538 US 343 (2003).

^[23] Ibid, 3623.

^[24] Ibid, 359; Chaplinsky v New Hampshire [1942] USSC 50; 315 US 568, 572; R. A. V. v City of St. Paul [1992] USSC 99; 505 US 377, 383.

^[25] Virginia v Black (n 22) 359.

^[26] Ibid, 349.

^[27] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 136.

^[28] Owen Dixon, ‘Two Constitutions Compared’ in Woinarski (eds), Jesting Pilate (William S Hein & Co, 1997) 101.

^[29] Blackshield and Williams Australian Constitutional Law and Theory (n 1).

^[30] Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977] HCA 71; (1977) 139 CLR 54; Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 536.

^[31] Miller v TCN (n 25) 582.

^[32] Ibid, 337.

^[33] Ibid.

^[34] Ibid, 579.

^[35] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (n 20).

^[36] Monis v R (2013) 249 CLR 92, 327 [267].

^[37] LexisNexis Australia, Halsbury’s Laws of Australia (online at 03 November 2022) [90-7200]; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

^[38] Ibid; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1.

^[39] Lange v Australian Broadcasting Corporation (n 30) 107; Halsbury’s Laws of Australia (n 30), [90-7225].

^[40] Lange v Australian Broadcasting Corporation (n 30), 108 [561]–[562].

^[41] McCloy v New South Wales [2015] HCA 34; (2015) 325 ALR 15, 36 [79]–[83]

^[42] Parekh, ‘Is there a Case for Banning Hate Speech?’ in Herz and Molnar (eds), The Content and Context of Hate Speech: Rethinking Regulation and Responses (Cambridge University Press, 2012) 37–56.

^[43] Ibid.

^[44] Ibid.

^[45] Ibid.

^[46] Ishani Maitra and Mary McGowan, ‘Introduction and Overview’ in Ishani Maitra and Mary McGowan (eds), Speech and Harm: Controversies over Free Speech (Oxford University Press, 2012) 1–23.

^[47] Katharine Gelber and Luke McNamara, ‘Evidencing the Harms of Hate Speech’ (2015) 22(3) Journal for the Study of Race, Nation and Culture 324–341.

^[48] Ibid.

^[49] Jeremy Waldron, The Harm in Hate Speech (2012, Harvard University Press) 108–109.

^[50] Eric Heinze, ‘Wild-West Cowboys versus Cheese-Eating Surrender Monkeys: Some Problems in Comparative Approaches to Hate Speech’ in Ivan Hare and James Weinstein (eds), Extreme Speech and Democracy (Oxford University Press, 2009) 182–203.

^[51] Whitney v California (n 20).

^[52] Ibid, 274.

^[53] Cleve Wooston, ‘Here’s What A Neo-Nazi Rally Looks Like in 2017 America’, Washington Post (online, 13 August 2017) < https://www.washingtonpost.com/news/local/wp/2017/08/13/heres-what-a-neo-nazi-rally-looks-like-in-2017-america/>.

^[54] Ibid.

^[55] Racial Discrimination Act 1975 (Cth); Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth).

^[56] Racial Discrimination Act (n 50) s 18C.

^[57] Ibid; Australian Human Rights Commission Act 1986 (Cth) s 46P.

^[58] Australian Human Rights Commission Act s 46PO.

^[59] Eatock v Bolt [2011] FCA 1103; (2011) 283 ALR 505.

^[60] Ibid 514 [452].

^[61] Parliamentary Joint Committee on Human Rights, Parliament of Australia, Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth) (2007).

^[62] Adrienne Stone, ‘The Ironic Aftermath of Eatock v Bolt [2015] MelbULawRw 5; (2015) 38(3) Melbourne University Law Review, 926 –943.

^[63] McGlade v Lightfoot [2002] FCA 1457; (2002) 73 ALD 385, 395 [49]–[52].

^[64] Racial Discrimination Act (n 50) s 18C.

^[65] Explanatory Memorandum, Racial Hatred Act 1995 (Cth) 11.

^[66] Ibid.

^[67] Eatock v Bolt (n 59)

^[68] Ibid 600 [461].

^[69] Ibid.

^[70] Ibid, 511 [26].

^[71] Eatock v Bolt (No 2) [2011] FCA 1180; (2011) 284 ALR 114.

^[72] Eatock v Bolt (n 59) 551 [227]–[40].

^[73] Ibid 579 [354].

^[74] Ibid 551 [228], 593 [423].

^[75] Media Law (n 9) 925.

^[76] Ibid 928.

^[77] McGlade v Lightfoot (n 58) 395 [48].

^[78] Anti-Discrimination Act 1977 (NSW)

^[79] Anti-Discrimination Act 1998 (Tas).

^[80] Jones v Scully [2002] FCA 1080; (2002) 71 ALD 567.

^[81] Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 235 ALR 56.

^[82] Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 289 ALR 128.

^[83] Crimes Amendment (Prohibition on Display of Nazi Symbols) Act 2022 (NSW); Summary Offences Amendment (Nazi Symbol Prohibition) Act 2022.

^[84] Crimes Act (n 68) s 93ZA; Summary Offences Act (n 68) s 41K.

^[85] Ibid.

^[86] Ibid.

^[87] ‘Hate on Display: Hate Symbols Database’, Anti-defamation League (Web Page) <https://www.adl.org/sites/default/files/ADL%20Hate%20on%20Display%20Printable_0.pdf>

^[88] Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth).

^[89] Zachary Laub, ‘Hate Speech on Social Media: Global Comparisons’, Council on Foreign Relations Backgrounder (Blog Post, 07 June 2019) < https://www.cfr.org/backgrounder/hate-speech-social-media-global-comparisons>

^[90] Ibid.

^[91] Ibid s 474.34.

^[92] Explanatory Memorandum, Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019, 3.

^[93] Ibid 7.

^[94] Wisconsin v Mitchell, 508 United States 476.

^[95] Michael Shively, Study of Literature and Legislation on Hate Crime in America (National Institute of Justice, 2005) 37.

^[96] Ibid 2.

^[97] Ibid 81.

^[98] Reno et al, A Policymaker’s Guide to Hate Crimes (Bureau of Justice Assistance, 1999) 41.

^[99] Ibid.

^[100] Thomas Brooks, ‘First Amendment--Penalty Enhancement for Hate Crimes: Content Regulation, Questionable State Interests and Non-Traditional Sentencing’ (1994) Journal of Criminal Law and Criminology 84(4) 703–742.

^[101] Wisconsin v Mitchell, 508 United States 476 (1993).

^[102] Ibid.

^[103] 18 USC § 245 (1996).

^[104] Ibid.

^[105] Gay Alcorn, Ronan Farrow says #MeToo Reporting Made Possible by United States First Amendment (The Guardian, 31 August 2018) < https://www.theguardian.com/world/2018/aug/31/ronan-farrow-says-metoo-reporting-made-possible-by-us-first-amendment>.

^[106] See Australian Human Rights Commission, Free & Equal: A National Human Rights Act for Australia (Position Paper, 2022).

^[107] Michael Kirby, ‘An Australian Charter of Rights – Answering Some of the Critics’ (2008) Australian Bar Review 31, 49.

^[108] Dobbs v Jackson Women’s Health, 597 US (2022).

^[109] Monis v R (n 31), 320 [244].

^[110] LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18; (2021) 391 ALR 188 (Steward J).