Constitutional ‘borrowing’ and freedom of expression: Can Australia learn from the US First Amendment?

The Australian (implied) freedom of political communication

The Australian Constitution is largely a ‘structural’ document and contains no entrenched bill of rights. This notably contrasts with the American model, where a ‘Bill of Rights’ is contained in the first ten amendments to the US Constitution. Notwithstanding this, since 1992 the High Court has recognised that communication about ‘government’ or ‘political’ matters impliedly receives a form of constitutional protection, to the extent necessary to protect the institutions of representative and responsible government prescribed in the Australian Constitution’s text and structure (the ‘implied freedom’). ² Through cases including Lange v Australian Broadcasting Corporation (Lange), ³ Coleman v Power ⁴ and McCloy v New South Wales (McCloy), ⁵ the Court has developed a distinctive framework for assessing whether a law invalidly exceeds the implied freedom (the Lange test). Under this test, courts will inquire (1) whether a law burdens the freedom; (2) if the purpose of the law is compatible with the constitutionally prescribed system of representative government; ⁶ and (3) whether the law is reasonably appropriate and adapted to advance that purpose.

Significantly, in 2015, a majority of the Court adopted a three-part ‘proportionality’ test (commonly applied by European courts) as an analytical tool to structure the ‘reasonably appropriate and adapted’ inquiry. ⁷ Under this approach, a court will ask (1) whether the provision has a rational connection to its purpose (‘suitability’); (2) if there is an obvious and compelling alternative that has a less restrictive effect on the freedom (‘necessity’); and (3) whether it is ‘adequate in its balance’ (described as ‘a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom’). ⁸

The implied freedom has been relied upon in a number of recent cases, including the successful 2017 challenge against Tasmanian anti-protest laws ⁹ brought by former Australian Greens leader Bob Brown and Tasmanian nurse Jessica Hoyt. ¹⁰ Notwithstanding these developments, there remain a number of unsettled questions regarding the doctrine’s application (for example, how it relates to the exercise of executive discretion). ¹¹ Further, there are particular groups of cases raising similar issues (such as speech by public servants) that have not yet been specifically analysed by the High Court. This means that the Court’s existing jurisprudence provides limited guidance to lower courts regarding the considerations that are particularly relevant for such categories of cases.

Free speech and the US First Amendment

The First Amendment to the US Constitution relevantly provides that ‘Congress shall make no law … abridging the freedom of speech’ (Free Speech Clause). Despite the text being limited to ‘Congress’, the Supreme Court has interpreted the provision as extending to the whole ‘national government’ (including the executive and judicial branches) and has ‘incorporated’ these protections as applicable to the States through the Fourteenth Amendment. ¹²

Since its first modern case interpreting this provision (the 1919 decision of Schenck v United States), ¹³ the Supreme Court has progressively developed a rich and complex body of free speech jurisprudence. Recent developments in both US and Australian case law have drawn attention to two particular doctrines developed for the First Amendment – the ‘compelled speech’ and ‘public employee speech’ doctrines.

US compelled speech doctrine

On 4 June 2018, the US Supreme Court delivered its much-anticipated decision in Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission (Masterpiece). ¹⁴ The case concerned a baker (Jack Phillips) who refused to sell a couple (Charlie Craig and David Mullins) a wedding cake, on the grounds that to do so would conflict with his religious opposition to same-sex marriage. A state administrative body (the Colorado Civil Rights Commission – the Commission) found that Phillips had engaged in unlawful discrimination, and ordered that he cease and desist from further discriminatory practices, and undertake remedial measures. Phillips challenged the Commission’s order and was granted leave to appeal to the Supreme Court.

Although the case raised questions regarding the potential tension between state anti-discrimination laws (and the dignity and equality interests they protect) and the rights to free speech and free exercise of religion, the Supreme Court declined to expressly consider these broader issues. Instead, in a 7–2 decision delivered by Justice Anthony Kennedy, the Court issued a narrow ruling holding that the Commission had displayed anti-religious bias in its consideration of Phillips’ case, violating a constitutional requirement for government ‘neutrality’ towards religion. The Commission’s order was invalidated on this largely procedural ground.

Interestingly, although not determinative in the Court’s holding, ¹⁵ Phillips’ lawyers framed the case as one largely implicating the Free Speech Clause, relying on the ‘compelled speech’ doctrine. It was argued that the act of baking a custom-made wedding cake is a form of artistic expression, or ‘speech’, that is entitled to protection under the First Amendment. On this view, it was submitted that:

[t]he cake, which serves as the iconic centerpiece of the marriage celebration, announces through Phillips’s voice that a marriage has occurred and should be celebrated. The government can no more force Phillips to speak those messages with his lips than to express them through his art. ¹⁶

First, the government may not compel participation in communication of the government’s own preferred message. In one of its first cases recognising this doctrine (West Virginia State Board of Education v Barnette (Barnette)), ¹⁹ the Supreme Court overturned recent precedent ²⁰ and invalidated a West Virginia Board regulation making it compulsory for public school children to salute the American flag and recite the Oath of Allegiance. The law had been challenged by a family of Jehovah’s Witnesses, who argued that compelling their children to engage in this conduct conflicted with their religious beliefs.

In its holding, the Court did not consider the religious dimension determinative. ²¹ Instead, its reasoning rested upon the speech interests it saw implicated in the case, as ‘[t]here is no doubt that, in connection with the pledges, the flag salute is a form of utterance.’ ²² The Court held that the action of the local authorities in compelling the flag salute and pledge ‘transcends constitutional limitations on their power’ as it ‘invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.’ ²³ As eloquently expressed by Justice Jackson:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. ²⁴

US public employee speech doctrine

In Australia, application of the implied freedom to public employee speech is a category that has not yet been specifically analysed by the High Court. As such, lower courts continue to apply the general Lange test (including proportionality analysis) in this context, without further guidance regarding the particular factors relevant to consider.

For example, in recent litigation, an army reservist (Bernard Gaynor) argued that termination of his service due to comments on social media contrary to, and critical of, Australian Defence Force policies regarding social inclusion and tolerance, and against the direct orders of his superiors, infringed the implied freedom. This submission was accepted by the primary judge, ²⁶ who reasoned that the termination was not ‘adequate in its balance’ as Mr Gaynor was expressing opinions about political matters ²⁷ and was doing so ‘effectively as a private citizen’. ²⁸

In contrast, on appeal, the Full Federal Court ²⁹ applied the Lange test to the regulation conferring the termination power ³⁰ (rather than the decision), ³¹ and upheld its constitutionality. The Court found that the regulation served a disciplinary purpose important in a hierarchical organisation such as the military, ³² and that the burden on speech was justified. The Court reasoned that the regulation was ‘adequate in its balance’ ³³ as it did not have the direct purpose of controlling political communication, ³⁴ and it was ‘the tone and attributes of the communication’ (rather than its content or subject matter) that was likely to trigger the exercise of the power. ³⁵

More recently, the Administrative Appeals Tribunal considered the dismissal of Michaela Banerji (an employee of the (then) Department of Immigration and Citizenship (the Department)) due to comments on social media critical of federal government immigration policy. ³⁶ Although Ms Banerji published the comments on a private twitter account that did not disclose her name or employer, the Department argued that this conduct breached the Australian Public Service Code of Conduct. ³⁷ In finding that the termination ‘trespassed on the implied freedom’, ³⁸ the Tribunal distinguished between ‘open’ public comment (where the identity of the public servant is known) and ‘anonymous’ public comment (the category into which Ms Banerji’s communications fell). Notably, given the paucity of Australian jurisprudence on point, the Tribunal expressed the view that comparative law (here Canadian precedent) may be ‘helpful to consider’. ³⁹

As Anthony Gray has put forward in an earlier Alternative Law Journal article, ⁴⁰ comparative US experience might offer the High Court valuable guidance in developing its implied freedom jurisprudence in this area, providing lower courts with some clarity and consistency regarding application of the Lange test when assessing burdens on public employee speech.

In the US, although the Free Speech Clause protects the speech interests of citizens from government intrusion, under the ‘state action’ doctrine, there is no right against private actors. Generally, an employer would be permitted to discipline an employee based upon their conduct in the workplace, including if they express messages that the employer finds disruptive or does not want to be associated with. This raises the question – what is the position when the government itself is the employer? To what extent can the free speech rights generally enjoyed by a citizen be curtailed in this context, due to the unique nature of the employment relationship?

Under the early view, the Supreme Court adopted a narrow approach to employee speech rights in this context. Public employment was conceived of as a ‘privilege’, rather than a ‘right’. Thus, as Justice Oliver Wendell Holmes opined in McAuliffe v Mayor of New Bedford, ⁴¹ a public employee (in this case a policeman) ‘may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.’ ⁴² However, since 1967, the Supreme Court has ‘uniformly rejected’ ⁴³ the view that public employees forfeit their right to freedom of speech by virtue of their public employment.

Through the seminal case of Pickering ⁴⁴ and its progeny (culminating in Garcetti v Ceballos), ⁴⁵ the Supreme Court has developed a three-part test for assessing public employee free speech cases. Government retaliation against public employee speech will violate the First Amendment where (1) the speech is on a matter of ‘public concern’; (2) the speech is said by a public employee in their capacity as a private citizen, not pursuant to the employee’s job duties; ⁴⁶ and (3) the damage caused by the speech to the efficiency of the government agency’s operation does not outweigh the value of the speech to the employee and the public (ie, a ‘balancing’ test between these competing interests).

Constitutional comparativism and the challenge of ‘difference’

From a comparative perspective, the Supreme Court’s First Amendment jurisprudence is one of the most well-developed bodies of free speech law worldwide. The above doctrines are but two examples of the many legal rules and frameworks developed by the Court to provide guidance in the adjudication of freedom of expression cases. Prima facie, this would be a logical source of learning for the High Court in developing its own implied freedom jurisprudence, particularly in light of the influence of US free speech law in the early years of the Australian doctrine’s development.

For example, in the foundational implied freedom case of ACTV v Commonwealth, ⁴⁷ Mason CJ adopted a distinction between ‘restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted’. ⁴⁸ As Adrienne Stone has observed, this was certainly ‘reminiscent’ of a ‘content-based’/‘content-neutral’ distinction employed in US First Amendment law. ⁴⁹ Similarly, in Theophanous, ⁵⁰ US constitutional concepts such as the potential ‘chilling effect’ of speech restrictions were more explicitly invoked. ⁵¹ The concept of ‘borrowing’ is commonly used to describe the potential transfer of legal ideas (including doctrine) between jurisdictions in this way.

However, despite the High Court’s general openness to the use of foreign law in domestic constitutional adjudication, over recent years, there has been a notable reluctance to engage comparatively with US free speech doctrine. One main objection to the use of comparative US law in this area is the perceived ‘difference’ in constitutional speech protections between the two systems.

First, the High Court has emphasised that the implied freedom is to be viewed as a limitation on governmental power, in contrast with the American individual or personal ‘right’ to free speech. For example, in Brown v Tasmania ⁵² Kiefel CJ, Bell and Keane JJ observed:

This Court has said more than once that the [Australian implied] freedom spoken of is not a personal right or freedom. The freedom is better understood as affecting communication on the subjects of politics and government more generally and as effecting a restriction on legislative power which burdens communications on those subjects. ⁵³

Second, a common claim in the comparative literature is the ‘exceptionalism’ of American constitutional rights jurisprudence – particularly evident in the unusually high level of protection that free speech receives under the First Amendment, and ‘the corresponding lower priority (or outright rejection) of competing rights or values, such as reputation, privacy, the individual and/or collective harm caused by certain types of speech, and access by the electorate to a full range of political views.’ ⁵⁸

For example, American free speech law is characterised by a marked hostility towards ‘content-based’ (particularly ‘viewpoint-based’) speech regulations, which are subjected to a standard of review ‘that approaches absolute protection.’ ⁵⁹ In notable contrast with the position in other liberal democracies (including Australia), this has frustrated attempts to regulate hate speech in the US, as the full range of ideological viewpoints are protected – even those espousing extreme, hateful or racist messages.

A deeper understanding of doctrinal ‘borrowing’

Certainly, constitutional difference is important. However, difference does not necessitate rejection of all comparative learnings from US First Amendment law. Rather, what it demands is a deeper and more nuanced understanding of constitutional ‘borrowing’. As has been explored in recent scholarship on the ‘migration’ of constitutional ideas, ⁶⁰ a more sophisticated approach to comparison does not assume the blind ‘transplantation’ ⁶¹ of legal doctrine between jurisdictions, without regard for local context or constitutional difference. Rather, comparison can be critical and adaptive, encompassing the possibility of ‘adaptation and adjustment’ of a legal rule, ⁶² or even rejection where foreign doctrine is too context specific or dependent. ⁶³

Although the ‘borrowing’ or ‘migration’ of constitutional ideas occurs ‘at various stages of the life-cycle of modern constitutions’, ⁶⁴ one important instance is when foreign doctrine is considered by a domestic court during constitutional adjudication. Here, comparison may serve a self-reflective or ‘dialogical’ purpose, as ‘courts identify the normative and factual assumptions underlying their own constitutional jurisprudence by engaging with comparable jurisprudence of other jurisdictions.’ ⁶⁵ When foreign law is viewed as a site for critique and self-reflection, the comparative utility of a doctrine is assessed by reference to its potential contribution to advancing the Australian-specific constitutional commitments under the relevant area of jurisprudence.

Constitutional borrowing in practice

Drawing upon the critical and adaptive mode of comparison described above, this article offers two general reflections regarding constitutional ‘borrowing’ by the High Court in the context of the US First Amendment.

First, it is argued that US free speech law will have most comparative utility when the doctrine is driven by ‘structural’ or ‘democratic’ considerations. Although the High Court has yet to articulate the substantive values or theoretical rationale underlying the implied freedom, its stated textually grounded basis bears some resemblance to the ‘democracy’ or ‘self-government’ rationale that the Supreme Court has explicitly invoked in aspects its free speech jurisprudence. The ‘argument from democracy’ was most famously articulated by American political philosopher Alexander Meiklejohn, who argued that democratic self-government requires an informed electorate, which in turn depends upon the free flow of information about matters of public interest. ⁶⁶

Certainly, the High Court has been clear that the implied freedom does not rest upon a ‘free-standing’ conception of representative government, leading commentators such as Dan Meagher to argue that the Australian rationale is significantly narrower than classic arguments from ‘democracy’. ⁶⁷ However, even accepting an ‘Australian-specific’ democracy rationale, as the implied freedom exists to ensure that Australian electors can exercise a ‘true choice with “an opportunity to gain an appreciation of the available alternatives”’, ⁶⁸ to the extent that US free speech doctrine is focused on furthering democratic debate about public affairs, and informing electoral choices, this could still assist in advancing these objectives.

For this reason, this article agrees with Anthony Gray’s identification of the comparative utility of the US public employee speech doctrine, ⁶⁹ as much of its rationale reflects considerations that are relevant to the implied freedom. For example, in Connick v Myers, ⁷⁰ the Supreme Court explicitly recognised that ‘[s]peech concerning public affairs is more than self-expression; it is the essence of self-government.’ ⁷¹ In Garcetti v Ceballos, ⁷² the majority again observed that in the context of public employee speech, ‘the First Amendment interests at stake extend beyond the individual speaker’, as there is also a public interest ‘in receiving the well-informed views of government employees engaging in civic discussion.’ ⁷³

The High Court may soon have the opportunity to consider the practical significance of this suggestion, as reports have indicated that the Banerji litigation may come before the Court. ⁷⁴ If presented with such a test case, this raises the question of how to ‘borrow’ appropriately from the US doctrine. Notably, the distinctively Australian implied freedom framework (incorporating ‘balancing’, or proportionality testing, as an analytical tool) contrasts with the ‘categorical’ or ‘rule oriented’ approach to constitutional decision-making that characterises US First Amendment jurisprudence. ⁷⁵ As such, it would be inappropriate to ‘transplant’ the whole US test (and its associated tiers of scrutiny) and apply it in an ‘absolute’ or ‘categorical’ way in Australia.

Rather, there may be scope to incorporate certain concepts articulated by the US Supreme Court into the existing Australian framework, as considerations to provide clarity and structure under the ‘balancing’ inquiry. For example, US cases have noted the importance of considering the capacity in which a public employee is speaking (officially, or as a private citizen); if the relevant burdened speech raises issues of workplace discipline or harmony (particularly where close working relationships are essential); ⁷⁶ and whether such communication impedes the ability of the employee to perform their job duties. ⁷⁷

Second, in contrast, US doctrine with a more ambiguous relationship to representative government will be more difficult to justify as relevant – in particular, doctrine that is heavily premised upon an ‘autonomy-based’ theory of free speech. ⁷⁸ To the extent that a foreign doctrine is primarily focused upon promoting the personal interests, autonomy or dignity of an individual and has less usefulness in serving other interests, this may be of less assistance from a comparative perspective.

Returning to the ‘compelled speech’ example raised in Masterpiece, ⁷⁹ the Supreme Court has repeatedly invoked concepts such as ‘personal autonomy’, ‘liberty’ and ‘individual freedom of the mind’ in explaining the rationale for recognising a constitutional prohibition against compelled speech. In Wooley v Maynard, ⁸⁰ the Court emphasised that the purpose of the doctrine is to safeguard the ‘right’ of individuals ‘to refuse to foster … an idea they find morally objectionable.’ ⁸¹ Similarly, in Hurley, ⁸² ‘autonomy’ was repeatedly invoked as justification for protecting a speaker’s ‘right’ under the First Amendment to choose the content of their message. ⁸³

The importance placed upon such ideas arguably reflects a ‘personal rights’ conception of speech protections, as it is the perceived invasiveness of compelled affirmation, and the affront to an individual’s integrity and conscience, that the doctrine is safeguarding against. Although arguments could still be raised regarding the potential ‘fit’ of this doctrine in the Australian context (for example, that it protects against risk of ‘misattribution’ of the attitude or viewpoint of a speaker, which may in turn distort public discourse regarding political matters), it will be more difficult to justify, particularly where there are alternative avenues available to correct such misapprehension. As the doctrine arguably reflects a ‘privileging’ of speech (vis-à-vis other competing interests) and strong ‘rights’ conception, it is suggested that it would not be as appropriate to consider as a site for comparative learnings.

Conclusion

In conclusion, although some legal doctrines may be too heavily embedded within American understandings of free speech to provide much assistance, others could offer guidance in advancing the inquiries and objectives identified by the High Court as relevant to the implied freedom. By overstating the challenge posed by difference, these latter insights risk being overlooked.