Social Media, Free Speech, and Religious Freedom in Australia
Colette Langos and Paul Babie
Social media forms part of the fabric of 21st century global life. A form of speech, social media allows communication with a potentially vast audience. Unsurprisingly, many people use it to disseminate religious views or ideas. While such proselytising (as part of a broad freedom of religion or belief (FoRB)) typically causes little concern, some instances can result in significant harm to the dignity of others. In 2018-20, for instance, Israel Folau, an Australian rugby player, claiming to be motivated by Christian beliefs, posted homophobic and deeply offensive Instagram comments, ultimately resulting in dismissal for violating the code of conduct contained in an employment contract. Putting the potential for discrimination — for Folau’s vilification of gay persons or for Rugby Australia’s dismissal for expressing religious belief — to one side, this essay considers the protections that might exist if the state attempted to regulate religious speech of this kind.
The essay contains three very brief parts. The first considers the range of methods found in Australian law — both federal (national, or Commonwealth) and state — that might be used to regulate religiously motivated speech. The second part considers whether such laws might infringe upon constitutionally protected speech and, if so, whether those laws might nonetheless be justifiable. In our Conclusion, we reflect upon whether religiously motivated speech may find protection in Australian law notwithstanding state attempts at general regulation of social media speech. While our focus is Australia, our conclusions bear relevance to other jurisdictions where speech is constitutionally protected.
I. Regulating Social Media Speech
Social media religious speech, like all speech created and shared on social media, is curtailed where it infringes (i) the Rules/Terms of Service governing a social media site, or (ii) where it falls within the reach of valid governmental action. While an important form of regulation, we are concerned here with actions taken by an Australian government through laws of general application aimed at regulating social media speech and which may have the incidental effect of limiting, restraining, or prohibiting social media religious speech. These laws fall into three groups.
First, the Commonwealth established the Office of the Commonwealth eSafety Commissioner pursuant to the Online Safety Act 2021 (Cth). It functions as a central point of contact for online safety issues for all Australians, operating as a civil enforcement mechanism for managing serious instances of cyberbullying (targeting children under 18 years of age), adult cyber-abuse, image-based abuse, and for removing illegal content.
Second, while Australia does not have a federal religious vilification law (it is possible for religious speech to be encapsulated by Criminal Code Act 1995 (Cth) ss. 80.2A and 80.2B where violence against a targeted group or members of a group is urged), three Australian States — Queensland, Tasmania, and Victoria — have anti-vilification laws encompassing religious speech. The legislation in each State is similar, defining “religious vilification” generally to include any conduct, including online conduct, that incites feelings of hatred against, serious contempt for, revulsion or severe ridicule of, a person or class of persons on the ground of their religious belief or activity. Each law also contains exemptions.
Finally, the criminal law of the Commonwealth and the States plays a role in regulating social media speech, although conduct will only be found to be criminal where it falls within the scope of an existing offence. Two such offences exists in the Commonwealth law: (i) to menace, harass or cause offence may fall under the Commonwealth offence of the misuse of telecommunications; and (ii) the offence of sharing of abhorrent violent material. In State criminal law, four possible offences may arise (here we draw upon the law found in South Australia, which is broadly representative of the other States: (i) it is an offence to make unlawful threats; (ii) a threat to apply force to a person based on the person’s religious affiliation may constitute assault; (iii) where religious speech communicated on social media occurs on two separate occasions, and where the perpetrator intends to cause the target of such speech serious physical or mental harm, or intends to cause the target serious apprehension or fear, the offence of unlawful stalking may apply; and (iv) “indecent” filming offences regulate filming of a person in situations where the person would reasonably expect privacy.
II. Is Religious Speech Constitutionally Protected?
But in addition to these enumerated rights, since 1977, the High Court (the Australian equivalent of the Supreme Court of the United States) has “implied” rights into the Constitution as a consequence of the federal democratic framework thereby established by the text as a whole. These are similar to “unenumerated rights” in American constitutional jurisprudence. If any of the Australian laws of general application considered above were to affect religious views disseminated on social media, determining whether such regulation was a violation of a constitutional freedom would involve consideration of the implied freedom of political communication. This represents the only such implied or enumerated right yet found by the High Court. The analysis involves two steps — whether the social media speech is in fact “speech” for the purposes of the protection and, whether the regulation, although an infringement of the speech protection, can nonetheless be justified as a reasonable limitation.
In 1992, the High Court recognised the existence of an implied freedom of political communication in Nationwide News Pty Ltd v Wills and Australian Capital Territory v Commonwealth, which stand for the proposition:
that there is to be discerned in the doctrine of representative government which the Constitution incorporates an implication of freedom of communication of information and opinions about matters relating to the government of the Commonwealth.
The freedom applies to both the Commonwealth and the States.
Does religious speech qualify as political communication, or “speech”, pursuant to the implied freedom? Two High Court decisions provide guidance on this matter: Attorney-General (SA) v Corporation of the City of Adelaide (“Street Preachers Case”), and Clubb v Edwards; Preston v Avery (“Clubb”). In the former, the Court wrote, in obiter, that:
some “religious” speech may also be characterised as “political” communication for the purposes of the freedom…. Plainly enough, preaching, canvassing, haranguing and the distribution of literature are all activities which may be undertaken in order to communicate to members of the public matters which may be directly or indirectly relevant to politics or government at the Commonwealth level.
And, in Clubb, the Court held that:
[a] discussion between individuals of the moral or ethical choices to be made by a particular individual is not to be equated with discussion of the political choices to be made by the people of the Commonwealth as the sovereign political authority. That is so even where the choice to be made by a particular individual may be politically controversial.
Yet, the Court conceded “the line between speech for legislative or policy change and speech directed at an individual’s moral choice “may be very fine where politically contentious issues are being discussed.”” The Court left open the possibility that such speech may, in fact, constitute protected speech. These pronouncements seem to allow for the possibility that religious social media speech may enjoy constitutional protection. As such, we assume that the motivation for Folau’s Instagram posts may be protected speech. The question, then, is whether such speech can be justifiably limited by the state.
No right is absolute. Most jurisdictions establish tests for determining the reasonableness or justifiability of state limitations placed upon a right. Thus, in McCloy v. New South Wales, the High Court wrote that the implied freedom of political communication “is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.” In other words, governments may legislate so as to limit, restrict, or even altogether prohibit a class of speech in order to shape behaviour. Determining the justifiability of that action, the High Court found in McCloy, involves a three-stage analysis. First, asking whether the law effectively burdens the freedom. If yes, then, second, asking whether the purpose of the law and the means adopted to achieve that purpose is legitimate. And, if yes, then, third, asking whether the law that has that effect is reasonably appropriate and adapted to advance that legitimate object. This last question involves three steps of its own, known as “proportionality testing”, each of which must be answered affirmatively in order for the law to be found justifiable: whether the law is suitable, necessary and adequate in its balance.
Conclusion: Is Social Media Religious Speech Constitutionally Protected?
Assuming, then, that speech such as Folau’s Instagram post was found to be religiously motivated speech, would it gain Australian constitutional protection in the sense that it could withstand McCloy’s three-stage test? There seems little doubt that most religious speech could fall within a protected class of speech if the implied freedom is taken to apply to it. There might be slightly less certainty concerning Folau’s inflammatory comments.
But assuming that religious speech is protected, and that laws of general application effectively burden the freedom then we must consider the second-stage of McCloy can be satisfied. It seems very likely that a court would find that the purpose of laws of general application and the means adopted to achieve their purpose are legitimate, in the sense that they are compatible with the maintenance of the constitutionally-prescribed system of representative government found in Australia. We assume that a court would find little difficulty in determining that stage two would be satisfied by a government in respect of the sorts of regulation we have canvassed.
Finally, then, a court must consider proportionality testing to determine the extent of the burden and whether it is justified, which in turn involves determining whether the law is suitable, necessary, and adequate in its balance. By “suitable,” it is meant that there is a rational connection to the purpose of the provision; by “necessary,” that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom; and, by “adequate in its balance,” a criterion requiring a value judgment consistently with the limits of the judicial function, that there be a balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.
It is at least arguable that laws of general application which take as their purpose the objective of protecting the dignity of minority groups would justifiably limit the implied freedom. Such laws would very likely be found to satisfy the first two steps found in the McCloy three-stage test — an effective burden, but one in relation to which the state has a legitimate purpose in acting, and uses appropriate means to achieve that end. While we conclude that the state would justifiably limit Folau’s speech in the furtherance of the dignity of those targeted by the vilification, where the precise line would be drawn as between religious speech in furtherance of one’s FoRB and the vilifying speech found in Folau’s Instagram post is less certain. The outcome, of course, depends upon proportionality testing. ♦
This is a revised version, republished with permission, of Colette Langos and Paul Babie, ‘Social Media, Free Speech and Religious Freedom’ (2020) 20(3) Rutgers Journal of Law & Religion 239.
Colette Langos, PhD, is a Senior Lecturer at the University of Adelaide Law School. She is an international expert in misuse of technologies and the law.
Paul Babie is Bonython Chair in Law and Professor of Law and Director of the Research Unit for the Study of Society, Ethics, and Law, Adelaide Law School, The University of Adelaide, Australia.
Langos, Colette & Paul Babie. “Social Media, Free Speech and Religious Freedom in Australia’” Canopy Forum, August 3, 2022. https://canopyforum.org/2022/08/03/social-media-free-speech-and-religious-freedom-in-australia.