Politics – Free speech

Australian Broadcasting Corporation v O’Neill [2006] HCA 46

Per Gleeson CJ And Crennan J
31… Blackstone, in his Commentaries Blackstone, Commentaries, (1769) bk 4, at 151-152., as long ago as 1769 distinguished between prior restraint of publication and subsequent legal consequences:

“The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity” (emphasis in original).

What lay behind Blackstone’s remarks was the conclusion in the late 17th century of the controversy between Parliament and the Crown over free speech and freedom of the press. From Tudor times, the House of Commons appreciated that its role in public life would be seriously curtailed without such freedoms. This explains the House’s repeated assertions, over the century, of a “liberty” to “speak freely their consciences without check or controlment””The Apology of the Commons, 20 June 1604” in Stephenson & Marcham, Sources of English Constitutional History, (1972), vol 1, 418 at 422.. This liberty found its way into The Bill of Rights, 1689 Expressed as a right to “freedom of speech and debates or proceedings in parliament.”. The “check or controlment” complained about came from the Crown or its councillors. A freedom to speak on behalf of the commons became a freedom, as Blackstone notes of “[e]very freeman”. Hand in hand with these developments went the dismantling of the Crown’s control, or censorship, of the press, first asserted generally by Ordinance in 1534, and requiring all manuscripts to be scrutinised and licensed by the Stationers’ Company. Decrees in Star Chamber reinforced that control or censorship in respect of both printers and books. As explained in the joint reasons of Gummow and Hayne JJ, the dismantling of the licensing system was effectively completed by 1695 See [80].. The public interest in free speech is explained not least by reference to the fact that freedom of speech and freedom of the press were important aspects of the constitutional struggles which came to rest with the Act of Settlement of 1701. Subsequently, courts of equity were not willing to enjoin publication of defamatory matter, not only because that would usurp the authority of juries, but also because they were most reluctant to be asked “to exercise the powers of a censor” Fleming v Newton (1848) 1 HLC 363 at 371 per Lord Cottenham LC.. This latter consideration remains important in our democracy.

32 It is one thing for the law to impose consequences, civil or criminal, in the case of an abuse of the right of free speech. It is another matter for a court to interfere with the right of free speech by prior restraint. In working out the consequences of abuse of such freedom, the law strikes a balance between competing interests, which include an individual’s interest in his or her reputation. When, however, a court is asked to intervene in advance of publication wider considerations are involved. This is the main reason for the “exceptional caution” Bonnard v Perryman [1891] 2 Ch 269 at 284 per Lord Coleridge CJ. with which the power to grant an interlocutory injunction in a case of defamation is approached…