Is liking something on Facebook 'protected political speech'? It depends

Australians are often surprised to learn that their Constitution contains no right to free speech. Even the right to political speech, which is constitutionally implied, is increasingly complicated by new online platforms where people can express their views.

The Australian Public Service Commission’s (APSC) recent guidance for public servants shone a spotlight on the issue. It advises employees they could be in breach of their code of conduct for liking or sharing posts on Facebook that are critical of the government.

So are Facebook or Twitter posts protected political speech? It depends. There are tensions in the law, including the extent to which employers can control the expressions of their employees.

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Former Australian Defence Force reservist and conservative Catholic Bernard Gaynor is testing these limits. He is challenging his dismissal from the Army Reserves, which came after he breached its online commentary rules by posting anti-LGBTQ statements.

The High Court will decide whether to take up his case later this week. If it does, the scope of Australia’s freedom of political communication could be clarified.

Australia’s limited protections for political speech

For more than 20 years, there has been a constitutional doctrine in Australia that free communication on matters of government and politics is an indispensable part of the country’s system of government – one that is “chosen by the people”.

This was explained by a unanimous High Court in Lange’s case in 1997.

The Court said a guarantee of freedom of expression in relation to public and political affairs must necessarily be implied from the constitutional principle of representative government.

In Lange’s case, the Court set out a two stage test for the validity of laws thought to interfere with the freedom:

1. Whether the law burdens freedom of communication about government or political matters either in its terms, operation or effect.
2. If it does so, whether the law is “reasonably appropriate and adapted to serve a legitimate end in a way that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government”.

The second part of the test allows governments to regulate political speech provided it is proportionate. Attempts to completely prohibit political speech outright would fail.

What is political speech?

The concept of “political” covers a variety of issues, but it does not cover all “public affairs”.

In Lange’s case, the High Court stated

the Constitution requires ‘the people’ to at least be able to communicate with each other with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of Ministers of State and the conduct of the executive branch of government.

The High Court has not finished its exploration of how and where the implied freedom of political communication arises.

Not all communication of public affairs, or matters in the “public interest”, will be protected. Discussion of government policies on welfare benefits, foreign affairs or climate change science could readily be political discussion.

Equally, critique of the performance of parliamentarians, the local council or the police force can be protected speech if the commentary or critique is reasonable and not made dishonestly or with malice.

When are you ‘at work’?

It’s increasingly apparent that social media use muddies the line between work life and home life.

It used to be, according to the courts, that “it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees”. There usually had to be some relevant connection between the employee’s misconduct and the employment relationship.

However, the context for these principles has shifted dramatically over the past two decades.

Old employment law decisions found social media activity to be an essentially private exercise, however commentators have noted that more recent decisions find employers’ rights of control have increased.

The rules for public servants

Public servants are uniquely restricted when it comes to political speech.

They are banned from standing for election by the Constitution and there are fair arguments that they need to be cautious in expressing, or being seen to express, political opinion.

The guiding rule is that the Australian Public Service (APS) is “apolitical”.

This raises a tension between competing values: the government has a legitimate interest in maintaining an impartial workforce, but public servants must have private views and be allowed some room to express their political opinions.

Using the High Court’s two-stage test, it is probably a proportionate limitation for the APSC Code to specify that political expression be curtailed in an appropriate manner.

Other limits that are too strict, unreasonable or disproportionate could be struck down by the Court. Restrictions on electoral advertising and electoral donations have been struck out on these grounds.

Still, the law remains largely unclear for public servants who wish to express political views without fear of reprisal.

Bernard Gaynor’s High Court fight

The case of Bernard Gaynor, who was kicked out of the Army Reserve for his anti-homosexual comments on Facebook, could provide some much-needed clarification on these issues.

In 2015, Gaynor successfully argued before a single Federal Court Justice that his termination infringed the freedom of political communication implied in the constitution.

The Chief of the Defence Force appealed that decision, claiming that freedom of political speech principles did not overrule regulations that allow an officer to be dismissed if his service is not in the interest of the Defence Force.

Earlier this year, the Federal Court agreed with the Defence Force’s arguments and found that the termination of Gaynor’s commission was not a breach of the Lange principles.

They noted that “implied freedom does not involve, nor does it recognise or confer, any personal rights on individuals”. Rather it is a freedom from government action or laws that constrain political expression.

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The correct approach, the Federal Court justices said, was to consider whether the authorising regulation itself was invalid because it disproportionately burdened the implied freedom.

In Gaynor’s case, the regulation that governed dismissals was “suitable, necessary, and adequate in balance with respect to any burden it imposes” on political communication, so Gaynor’s termination was found to be valid.

Gaynor is appealing, and the High Court will have to assess whether his case merits reconsideration of the Full Federal Court’s ruling.

Freedom to discuss political matters is one of the few constitutional guarantees we have. Given growing questions over political speech on social media platforms, we will be looking to the High Court to clear up the scope of this protection.