Freedom of Speech:Expression

What Conversation?
Free Speech and Defamation Law

Author(s): Andrew T. Kenyon
Source: The Modern Law Review, Vol. 73, No. 5 (SEPTEMBER 2010), pp. 697-720
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THE
MODERN LAW REVIEW
Volume 73 September 2010 No 5
What Conversation? Free Speech
Andrew T. Kenyon*
Common rationales for free speech are offered in legal

though their laws regulating speech differ markedly. This
ing about speech, based on particular qualities of speech w
- or at least public speech perceived as valuable for cultu
quently thought of as a conversation. That often appears a
tion can limit what is seen to be at stake in the control
speech as open exchange that leads to agreement, here a sli
more on the articulation of incommensurable world vie
approach are considered for scholarly understanding, par
law commonly seen as important for the range and style o
INTRODUCTION
Rationales offered in support of free speech follow comm

many locations, both geographic and academic. Within leg
rationales are generally shared across jurisdictions even thou
speech in them differ markedly. This situation can be seen
American free speech literature and defamation law. Defama
law to consider in this regard: it is widely regarded as having s
public speech,1 and it appears to be an area of law in which
about speech are weighed differently across different jurisd
similarity in ideas about free speech and differences in defa
examines rationales for speech and suggests they can overlo
*Professor and Deputy Dean, Melbourne Law School and Joint Director,
and Communications Law, University of Melbourne. This article has bene
ing from the Australian Research Council, 'Defamation and Privacy: Law
(Kenyon, DP0985337). It also develops ideas presented at annual confere
New Zealand Communication Association and the International Communication Association.
1 As well as being seen in much academic commentary and legal argument, there is also quite sub-
stantial empirical evidence in support of defamation law affecting media content; see eg R. P.
Bezanson, G. Cranberg and J. Soloski, Libel Law and the Press: Myth and Reality (New York: Free
Press, 1987); E. Barendt, L. Lustgarten, K. Norrie and H. Stephenson, Libel and the Media: The Chil-
ling Effect (Oxford: Clarendon Press, 1997); C. Dent and A.T. Kenyon, 'Defamation Law's Chilling
Effect: A Comparative Content Analysis of Australian and US Newspapers' (2004) 9 Media &
Arts Law Review 89; R. L. Weaver, A. T. Kenyon, D. F. Partlett and C. P.Walker, The Right to Speak
III: Defamation, Reputation and Free Speech (Durham, NC: Carolina Academic Press, 2006).
2010 The Author. Journal Compilation 2010 The Modern Law Review Limited. (2010) 73(5) MLR 697-720
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Maiden, MA 02148, USA
of public speech. Recognising those qualities alters what is seen to be at stake in

speech and its control, and offers another axis through which to think about free
speech and law.
One way of understanding what is common across rationales for speech is to
recognise a tendency to conceptualise public speech as if it were a conversation, or
at least to imagine that speech of value will tend towards the conversational in
style. While there are obvious connections to Jrgen Habermass conceptual
research into the public sphere,2 the tendency exceeds any conscious reference to
that particular tradition. Implicit in much writing about the media is the idea that
public speech resembles, or should resemble, a conversation. Approaching public
speech in terms of open exchange leading to agreement is longstanding and per-
vasive. It is a recurrent ideal. The situation may be close to the suggestion of the
media historian and social theorist John Durham Peters who has noted: 'It is an
instructive fact that all of the political positions represented in contemporary cul-
tural theory and media studies agree on the value of "conversation".3
Of course, it is also clear that much speech is not at all conversational - hate
speech and vilification offer just one example of the speech 'fraught with death'
famously described by Oliver Wendell Holmes:
I think that we should be eternally vigilant against attempts to check the expression
of opinions that we loathe and believe to be fraught with death, unless they so
imminently threaten immediate interference with the lawful and pressing purposes
of the law that an immediate check is required to save the country.4
Advertising may offer another instance of speech outside a conversational model,5

and political debate - as it is practised - may be a third.6 While some legal judg-
ments and articles consider these styles of communication, speech is also concep-
tualised within law in conversational terms. This may occur particularly in
relation to speech about political matters and public affairs, at least as that speech
is imagined within judicial and academic writing. Such speech is valued highly in
many democratic legal systems - it can easily be described as a dialogue between
voters themselves and between voters and government.7 In an area of law such as
defamation, legal judgments may often imply some form of public conversation
as existing or being sought for political speech. In relation to other laws regulating
2 See eg J. Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of
Bourgeois Society (Cambridge, MA: MIT Press, trans T. Burger with E Lawrence, 1989); Between
Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: Polity Press,
transWRehg,1996).
3 J. D. Peters, 'Media as Conversation, Conversation as Media in J. Curran and D. Money (eds),
Media and Cultural Theory ( Abingdon: Routledge, 2006).
4 Abrams v United States 250 US 616, 630 (1919) (Abrams) (Holmes J in dissent, Brandeis J agreed). See
also text accompanying n 28 below.
5 At least where it does not also involve wider public or political issues, see eg Barthold v Germany
(1985) 7 EHRR 383; and in the US see Nike Ine v Kasky 123 S Ct (2003) and the symposium, 'Nike
v Kasky and the Modern Commercial Speech Doctrine (2004) 54 Case Western Reserve Law Review
954.
6 Consider Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 (Coleman) and text accompanying
n 159-165 below.
7 E. Barendt, Freedom of Speech (Oxford: Oxford University Press, 2nd ed, 2005) 156.
2010 The Author. Journal Compilation 2010 The Modern Law Review Limited.
698 (2010) 73(5) MLR 697-720
Andrew T. Kenyon
speech, there can be the idea that exposure to evil' will ultimately 'be good for
public health'.8 But for defamation law, outside the United States at least, that
conception does not appear to hold sway.
Similar ideas about speech can be seen outside law. As media sociologist
Michael Schudson wrote more than 30 years ago, criticism of mediated speech is
often influenced by a conversational ideal, one that involves spontaneous feed-
back across multiple channels subject to egalitarian rules of engagement and
aimed at consensus formation.9 The media is called on to model just that kind of
collective conversation and its inevitable failure to do so prompts continuing
laments and suggestions for reform, whether from academic, professional or poli-
tical fields. There are numerous, well known critiques of that sort of conversa-
tional approach to speech.10 Among other things, it is seen to overlook ways in
which people are linguistic beings - beings with a social existence facilitated
through language.11 It is not that a conversational approach to speech lacks value,
but that its understanding of public communication entails particular limitations.
Here, some of these limitations and their legal resonance are considered.
Within some writing about free speech and law, a tendency to draw on con-
versational ideas can be seen, in contrast with approaches that emphasise the value
in allowing speech that is understood as extreme. One approach emphasises what
is seen as an ideal; the other what is believed to be a necessary evil. The conversa-
tional tendency is addressed in the next section, which examines common ratio-
nales for speech, especially ideas of speech furthering truth, self governance and
autonomy Examples of US legal scholarship on free speech are used, such as the
work of Robert Post and Edwin Baker. Each of those writers has sought to create
a theory of free speech - in particular, of the US first amendment - and from that
theory has derived legal rules about speech.12 The analysis focuses on one primary
value of free speech in Baker's work on liberty, although his basis of human lib-
erty is supplemented in relation to the institutional media by reference to the first
amendment's press clause.13 Post's analysis sets out a hierarchical taxonomy in
which speech has multiple values related to different domains of social practice.14
Usefully for present purposes, both approaches illustrate how a conversational
idea of speech can often be seen within common rationales for free expression,
8 J. D. Peters, Courting the Abyss: Free Speech and the Liberal Tradition (Chicago: University of Chicago
Press, 2005) 1.
9 M. Schudson, 'The Ideal of Conversation in the Study of Mass Media' (1978) 12 Communication
Research 320. See also Peters, n 3 above.
10 An illustrative collection of a post-Habermasian strand of this work is N. Crossley andj. M.
Roberts (eds), After Habermas: New Perspectives on the Public Sphere (Oxford: Blackwell/Sociological
Review, 2004).
1 1 See eg J. Butler, Excitable Speech: A Politics of the Performative (New York: Routledge, 1997) 5.
12 This accords with the traditional method of legal writing about speech, namely specify [ingj the
correct free-speech principle and the policy that follows from it': S. Fish, 'The Dance of Theory'
in L. C. Bollinger and G. R. Stone (eds), Eternally Vigilant: Free Speech in the Modern Era (Chicago:
University of Chicago Press, 2002) 199, 200.
13 See eg C. E. Baker, Human Liberty and Freedom of Speech (New York: Oxford University Press, 1989)
and on the press clause: 225-249.
14 See eg R. Post, 'Reconciling Theory and Doctrine in First Amendment Jurisprudence in
Bollinger and Stone, n 12 above; the chapter was also published at (2000) 88 California Law
Review 2353.
(2010) 73(5) MLR 697-720 699
even if not within all of them as shown by Posts participatory theory of self
government.15
However, if to converse is thought of as involving open feedback, egalitarian
rules of engagement and consensus formation, then at least some speech may be
better thought of differently. To address a public is a particular kind of world-
making project. Such speech can be thought of in terms of affect as much as infor-
mation; it creates divergent and plural publics. The approach is illustrated through
the work of literary and social theorist Michael Warner.16 Warner has examined
public and literary forms of speech, rather than free speech law, but there are reso-
nances between his analysis and various legal approaches. His study helps to
explain the prevalence of conceptions of speech in terms of public conversation,
and the limitations of such conceptions.
These ideas about speech are then used in examining defamation law. There
appear to be quite different forms of public speech envisaged within US defama-
tion law and the law of jurisdictions such as England and Australia. In the latter, a
conversational ideal retains greater purchase than in the US. This is so, at least
with regard to the treatment of factual defamatory publications about political
matters and public affairs published to wide audiences, the treatment of which
has classically been contentious within law. The differences in approach have
emerged after the historic US changes to defamation law since the 1960s under
the influence of the first amendment,17 and the more recent reforms in a host of
other common law countries that developed qualified privilege defences available
to media and other widespread publications.18 The analysis suggests why the more
recent non-US developments in defamation have held appeal within law, but also
highlights reasons for the limitations that the developments are likely to face in
practice. The differing ways in which ideas of speech as conversation can be drawn
on within law can also be seen in judicial responses to a situation of bffensive'
public speech. Some responses lean towards the supposed ideal of civil public
communication; others doubt that as a role for law at all.19
It is worth noting at the outset that the suggestions offered here for richer academic
analysis of the ways in which speech is conceptualised are distinct from questions
about how law reform might be pursued to promote speech. Some such strategic
engagement with law may continue to draw on ideals of speech as conversation.20
But the utility that conversational ideals may have for questions about legal and media
policy need not exhaust analysis, whether from academic bases in law or media studies.
15 See text accompanying n 50-53 below.

16 M.Warner, Publics and Counterpublics (New York: Zone, 2002).
17 The most important decisions are NewYorkTimes v Sullivan 376 US 254 (1964) (Sullivan); Gertz v
Robert Welch 418 US 323 (1974); and Anderson v Liberty Lobby 477 US 242 (1986).
18 See n 96-103 below.
19 See Coleman, n 6 above, and text accompanying n 159-165 below; see also R. Douglas, 'The Con-
stitutional Freedom to Insult: The Insignificance of Coleman v Power' (2005) 16 Public Law
Review 23, 34-37 whose analysis suggests that relative civility with regard to political speech
exists within the Australian context 'independent of the law'.
20 This might resemble the way in which 'Liberal rhetoric is a standard default position for people
who find their liberty threatened': Peters, n 8 above, 17. Peters gives an example involving the
editor of a magazine, Living Marxism, who used standard liberal ideas in response to the threat of
a defamation action being brought against the magazine.
700 (2010) 73(5) MLR 697-720
Andrew T. Kenyon
RATIONALES FOR FREE SPEECH: TRUTH, DEMOCRACY,

AUTONOMY
Multiple rationales for protecting speech are commonly offer

on free speech. Here, it is sufficient to note several prominent
legal writing.21 To a large degree they exist in this form as a prod
century case law and scholarship, especially from the US.22 T
legal and liberal philosophical rationales for protecting speech
said to further a search for truth, further the operation of demo
ernment, and further the development of autonomous subject
erty. In the US, with its constitutions first amendment that
no law abridging freedom of speech or the press, these justificatio
intersect with a fourth: distrust of government action that is
late speech.23
The first of the above rationales is speech and truth: truth
thought to relate not only to information of a factual quality
true or false, but also to political and ethical matters. John M
reference, who in his famous plea for unlicensed printing wro
And though all the winds of doctrine were let loose to play upon
be in the field, we do injuriously, by licensing and prohibiting,
strength. Let her and Falsehood grapple; who ever knew Truth pu
a free and open encounter?24
Some approaches to speech and truth do seek to acknow

implicated in claims to knowledge, but often such i
through deploying the concept of a marketplace of idea
shown, the linking of Milton and the marketplace is a suspect
even though it is one commonly made in law.25 Rather t
out of which truth would be recognised, Milton saw free
exposure to evil that free speech allows - as necessary for th
human virtue:
21 For general legal reviews see eg Barendt, n 7 above; Bollinger and Stone, n 12 above; F. Schauer,
Free Speech: A Philosophical Inquiry (Cambridge: Cambridge University Press, 1982). For a com-
parative analysis, see eg R. J. Krotoszynski Jr, The First Amendment in Cross-Cultural Perspective: A
Comparative Legal Analysis of the Freedom of Speech (New York: NYU Press, 2006).
22 See eg Peters, n 8 above, 14-18 and 21. See also D. M. Rabban, Free Speech in its ForgottenYears (Cam-
bridge: Cambridge University Press, 1997).
23 This fourth rationale has been developed and considered separately from the other three in the
second edition of Barendt, n 7 above.
24 See J. Milton, Aeropagitica: A Speech for the Liberty of Unlicensed Printing (1644, edited and introduced
by J. W Hales, London: Oxford University Press, 1944). The work is also available at Project
Gutenberg at http://www.gutenberg.org/etext/608 (last visited 30 March 2010). As Peters sug-
gests, in free speech writing greater reference could also be made to Milton's Paradise Lost, which
can be seen to demonstrate the theory set out in Aeropagitica by enacting an extended wrestling
match' between truth and falsity within its pages: Peters, n 8 above, 81.
25 See generally, Peters, n 8 above, 69-73.
(2010) 73(5) MLR 697-720 701
Without contraries, there is no knowledge; without knowledge, there is no virtue.

In this Milton offers a beautifully clear justification for liberty of publication:
diverse writings and arguments teach us good and evil - or good via evil.26
As well as references to Milton and John Stuart Mills On Liberty,27 in the US the
legal concept of the marketplace of ideas is usually traced to a series of judgments
by Oliver Wendell Holmes and Louis Brandeis. These judgments moved, across
several decades, not just from a minority to majority position on the Supreme
Court, but achieved canonical status in US free speech law. In his famous dissent
in Abrams v US, Holmes J stated strongly that competition in a market is the best
test of what is true:
[W]hen men have realized that time has upset many fighting faiths, they may come
to believe even more than they believe the very foundations of their own conduct
that the ultimate good desired is better reached by free trade in ideas - that the best
test of truth is the power of the thought to get itself accepted in the competition of
the market, and that truth is the only ground upon which their wishes safely can be
carried out. That at any rate is the theory of our Constitution. It is an experiment, as
all life is an experiment. Every year if not every day we have to wager our salvation
upon some prophecy based upon imperfect knowledge.28
While such a rationale need not mean that a trade in ideas will lead to agreement,
approaches to speech and truth often appear to imply that the true ideas will be
revealed in the process and will be recognised and find agreement. A Millian
approach, as Eric Barendt notes, assumes that there will be a lively discussion of
rival views, as if society were conducting a perpetual seminar'.29 In contrast, the
above quote from Holmes J suggests that his views were not as conversational as
many subsequent articulations. Holmes saw the market in more brutally compe-
titive terms.30 Even so, it is often a conversational event that is imagined under the
marketplace rationale.
Among other commentators, Post has examined the particular social practices
being assumed within the marketplace model. It is seen to depend on much more
than just the offering of ideas and attitudes:
It requires an important set of shared social practices: the capacity to listen and to
engage in self-evaluation, as well as a commitment to the conventions of reason,
which in turn entail aspirations toward objectivity, disinterest, civility, and mutual
respect.31
26 ibid 78.
27 J. S. Mill, On Liberty (New York: Norton, 1975).
28 Abrams, n 4 above, 630 (Brandeis J agreed).
29 See eg Barendt, n 7 above, 12.
30 Peters, n 8 above, 146-152. Barendt, n 7 above, 11-12 also notes Holmes approach as diffrent to
Mills.
31 Post, n 14 above, 163. Again, it is public speech as an academic seminar which is being invoked
here, as Post notes in quoting the Supreme Court's endorsement of the 'college classroom' as 'pecu-
liarly the "marketplace of ideas'".
702 (2010) 73(5) MLR 697-720
Andrew T. Kenyon
Thus, Mill argued that what is required is not just lack of state censorship, but a
Veal morality of public discussion.32
There are tensions within this idea of disinterested and respectful intercourse.
The awkward duality of a fearless, passionate speaker who is also a rational - and
dispassionate - listener is captured beautifully by Peters in his discussion of Mill.
Peters notes that, for Mill:
[T]he speaker needs to be fanatically convinced and confident enough to keep the
public drama high and the flow of ideas fresh . . . Doctrines must be proclaimed by
their most forceful and convinced advocates . . . Commentary by neutral parties
dilutes.33
And yet it has also become accepted that 'the ability to suspend personal interests
and sentiments is a prerequisite for public communication,34 especially for the
listener in public speech. Thus being convinced that one is correct is, for Peters,
'both the engine and the enemy of the public sphere'.35 Similarly, academic lawyer
Andrew Geddis notes:
[W]hile the ideal of the dissenting speaker provides an appealing hypothetical, such
figures often prove less attractive when the word is made flesh . . . The very same
qualities - commitment, enthusiasm, preparedness to ignore the opinion of others
- that enable dissenters to lay their views open to public scorn and censure can also
mean that they assume all members of society should, as a matter of course, care as
deeply about those opinions as they do.36
While a real 'public discussion is claimed to be the aim under this rationale
for speech, it appears likely to be achieved in a manner that is not quite conversa-
tional.
An even more popular idealisation within legal discourse - and one with
strong resonance for media studies as well - is the idea of free speech serving democ-
racy. In particular, there is a claim that political processes or substantive political
decisions will be improved through public speech. This rationale is especially
appealing within law because it can draw on constitutional bases. It is uncontro-
versial to suggest that this argument 'has been much the most influential theory in
the development of contemporary free speech law'.37 In Australia, for example, a
protection for political communication has been found to be implicit within the
text and structure of the constitution; it arises through the country's constitu-
tional system of representative and responsible government.38 In the UK, the
Human Rights Act 1998 amounts to a constitutional base for free speech through
32 Post quotes this passage from Mill (n 27 above): n 14 above, 164.

33 Peters, n 8 above, 132-133.
34 ibid 22.
35 ibid m
36 A. Geddis, 'Free Speech Martyrs or Unreasonable Threats to Social Peace? "Insulting" Expressi
and Section 5 of the Public Order Act 1986' [20041 PL 853, 854.
37 Barendt, n 7 above, 20.
38 See in particular Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Lange); Coleman,
n 6 above.
(2010) 73(5) MLR 697-720 703
its recourse to the European Convention on Human Rights.39 And the US

famously has constitutional protection for speech under the first amendment. As
suggested by Brandeis J, the US conception sees public deliberation as a duty:
Those who won our independence believed . . . that the greatest menace to freedom
is an inert people; that public discussion is a political duty; and that this should be a
fundamental principle of the American government.40
In this understanding, free speech is seen to aid self government 'by generating
open discussion on matters of public concern.41
This democratic or self government rational can be understood in differing
ways, one of which is more conversational in its approach. Post, for example, sets
out two accounts of self-determination.42 He derives the first from its classic US
exponent, Alexander Meiklejohn. This account focuses on the role of speech in
informed decision making and voting, on the process and procedure of reaching
decisions. The purpose of the first amendment, for Meiklejohn, is guarding . . .
freedom of public discussion ,43 The standard analogy is to a town meeting, which
discusses matters of public policy in order to reach a decision:
The final aim of the meeting is the voting of wise decisions . . . [T]his, in turn,
requires that so far as time allows, all facts and interests relevant to the problem shall
be fully and fairly presented to the meeting. Both facts and interests must be given
in such a way that all the alternative lines of action can be wisely measured in rela-
tion to one another.44
Thus for Meiklejohn, the first amendment does not entail unregulated talkative-
ness'. Rather, in his view, 'What is essential is not that everyone shall speak, but
that everything worth saying shall be said'. This clearly can entail the regulation of
speech: 'To this end, for example, it may be arranged that each of the known con-
flicting points of view shall have, and shall be limited to, an assigned share of the
time available'.45 Just as speech is subject to regulation in a town meeting, the
process of public speech may be regulated towards the same end of voting wise
decisions.
Here again, an analogy can be drawn to a conversational idea of speech. This
would not necessarily be in terms of completely open feedback - as Warners ana-
lysis below illustrates, all public communication imposes certain limits.46 Rather,
39 For a comprehensive analysis see H. Fenwick and G. Phillipson, Media Freedom under the Human
Rights Act (Oxford: Oxford University Press, 2006).
40 Whitney v California 274 US357, 375 (1927) (Brandeis J, concurring).
41 Krotoszynski, n 21 above, 16.
42 Post, n 14 above. See also R. C. Post, Constitutional Domains: Democracy, Community, Management
(Cambridge, MA: Harvard University Press, 1995).
43 A. Meiklejohn, Political Freedom: The Constitutional Powers oj the People (New York: Harper, I960) 9.
This book substantially reproduces the earlier A. Meiklejohn, Free Speech and its Relation to Self-
Govemment (New York: Harper, 1948) which is also available at http://digital.library.wisc.edu/
17U.dl/UW.MeikFreeSp (last visited 30 March 2010).
44 Meiklejohn, Political Freedom, ibid 25-26.
45 ibid.
46 See text accompanying n 80-81 below.
704 (2010) 73(5) MLR 697-720
Andrew T. Kenyon
self-government here would see a managed, collective inquiry in which a wide

variety of views are presented fairly in a 'public discussion 47 aimed at forming
'mutual understanding'. This approach understands speech ultimately in educa-
tional and civilising terms:
And this means that far deeper and more significant than the demand for the
freedom of speech is the demand for education, for the freeing of minds. These
are not different demands. The one is a negative and external form of the other.
We shall not understand the First Amendment unless we see that underlying
it is the purpose that all the citizens of our self-governing society shall be equally'
educated.48
This, in turn, leads Meiklejohn to make very strong criticism of commercial radio
(an important form of media when he wrote) which he sees as neither free nor
entitled to first amendment protection, because he sees it as failing to promote
useful public discussion.49
Post s second, participatory theory of self government places greater emphasis
on the autonomy of citizens. Rather than focusing on the mechanisms by which
decisions are made, it 4locate[s] self-government ... in the processes through
which citizens come to identify a government as their own.'50 Post notes that citi-
zens will be likely to disagree with many actual decisions of their government, so
they must 'experience their authorship of the state' in a manner that precedes the
making of any given decision by the government.51 This experience of authorship
involves the formation of identity. Because public speech is 'precisely the site of
political contention about the nature of collective identity',52 there is no neutral
position from which the state can regulate it. The participatory theory of self gov-
ernment demands that such speech not be regulated so as to prevent particular
collective identities being formed. The state must 'be constitutionally prohibited
from preventing its citizens from participating in the communicative processes
relevant to the formation of democratic public opinion.'53 In this understanding,
civility cannot be enforced by law. Something that is important to note for pre-
sent purposes, this rationale does not invoke a conversational idea of speech. It
suggests, instead, a conception of self government that requires speech not to be
limited to open listening and feedback, egalitarian rules of engagement and con-
sensus formation.
A third rationale for protecting speech, also present in the legal literature, is the
idea of speech and autonomy. Speech can be seen as an integral aspect of each indivi-
dual's right to self-development'. Through speech after truth and democracy, the
expression of beliefs and attitudes 'instantiates or reflects what it is to be human ,54
This links easily to artistic expression and the offering of opinion, but can also
47 Meiklejohn, Political Freedom, n 43 above, 86.

48 ibid 86.
49 ibid 87.
50 Post, n 14 above 166.
51 ibid 166.
52 ibid 167.
53 ibid 166.
54 Barendt, n 7 above, 13.
(2010) 73(5) MLR 697-720 705
apply to other public speech. Some writers here note the recipients' interests in
such speech.55 If liberal individuals have the idea of autonomy ascribed to them
within political theory, then they will be seen to have interests in receiving infor-
mation in order to exercise autonomy.
One of the more detailed examinations of an autonomy-based rationale for
speech has been offered by Baker. He argues for an understanding of free speech
driven by his articulation of the concept of human liberty. Liberty is seen to entail
two important values. As well as the value of self-fulfilment, it involves participa-
tion in change and social decision making. For Baker, the autonomy theory needs
'to specify and protect activities essential to a broadly democratic, participatory
process of change'.56 Here, one might suspect resonances with the participatory
theory of Post, but Baker's analysis is more conversational in approach.
Baker explicitly assumes that it is possible for Weberian rationalisation of
society to be overcome. While in modernity, there has been increasing domina-
tion 'by instrumentally oriented market and bureaucratic practices that treat
wealth and efficiency as goals that properly dominate all other concerns', Baker
seeks a revolutionary reversal'.57
Symbolic or communicative interaction would again dominate, but this time not
within a closed, hierarchical structure. Rather . . . communicative or symbolic
action would be increasingly based on conscious choice, free of traditional, struc-
tural domination . . . This hypothetical, postmodern world broadly corresponds to
the content of presently needed, progressive change. That is, the needed change is to
reverse the current dominance of purposive-rational action and establish the social
and political supremacy of undistorted symbolic interaction.58
Even though he has a strong appreciation for dissent,59 Baker is what could be
called a radical conversationalist: 'The progressive ideal . . . must be to subordinate
instrumental action and not use it in any way that undermines, distorts, or
destroys communicative action oriented toward consensus.'60 Again the speech
being imagined is conversational.
Not surprisingly, within the literature there are challenges to the above styles of
free speech analysis - although the amount and their impact within law are less
than might be expected by cultural researchers. In any event, there is little regis-
tration within law of ideas about speech beyond relatively simple forms of the
ones outlined above. Law maintains they are the resources to deploy when
arguing about and making decisions on laws that affect speech: truth, democracy,
autonomy (and perhaps distrust of government action). Within versions of all
these rationales, conversational ideas of speech can be seen. And a different way
in which to understand these existing free speech theories is through the approach
they take to the idea of speech as conversation.
55 Eg ibid 13-18.
56 Baker, n 13 above, 47.
57 ibid 96.
58 ibid.
59 See eg Baker's discussion of how 'balancing' or 'reasonableness' approaches to regulating speech
limit dissent: ibid 128-131.
60 ibid '07.
706 (2010) 73(5) MLR 697-720
Andrew T. Kenyon
SPEECH FOR THE CREATION OF PUBLICS
As well as an interest in theoretical approaches to speech and

article has been prompted by concerns seen in some commen
of free speech is allied to those in positions of privilege, conce
further consideration in the literature as a whole. Australian cultural studies aca-
demic Alan McKee has offered an evocative phrase - or it may be better labelled a
serious joke - that could be applied to values such as free speech: perhaps
they should be understood as part of the 'identity politics of formally educated
Western masculine culture'.61 Peters has noted a somewhat similar point. The stan-
dard narrative of the intellectual history of free expression theory focuses on a
succession of English-speaking Protestants named John - Milton, Locke, Mill,
Dewey, Rawls'.62 He has also alluded to the inflections of class in attitudes to free
speech.63
Parallel to such concerns, one could note empirical findings about free speech.
A study by Julie Andsager and her colleagues into public attitudes to free speech
in the US, Russia, Israel and Hong Kong, found that male, educated and wealthy
members of the public were strongest in supporting liberal approaches to
speech.64 Consistent results were found in a small but detailed Californian study
by Laura Beth Nielsen, who investigated the occurrence of, and attitudes towards,
harassing speech on public streets. She found greater recourse was made to first
amendment rationales by white men, while 'the burden of speech is dramatic and
largely is borne by white women and people of color'.65 As has been noted of
Andsager study, this sort of research suggests how liberal free speech is a 'philoso-
phy of the privileged'.66 Similar views have been expressed about the gendered
qualities of speaking in public.67 For example, the worldview presented in the
morning news and commentary program on UK radio, Today, has plausibly been
characterised as 'white, male and English common sense'.68 More examples
could be given about the analysis of and practice of speech, including the racially
61 A. McKee, The Public Sphere: An Introduction (Cambridge: Cambridge University Press, 2004) 211,
where he makes the point more generally about traditional Enlightenment values.
62 Peters, n 8 above, 64.
63 ibid 161.
64 J. L. Andsager, R. O. Wyatt and E. Martin, Free Expression and Five Democratic Publics: Support for
Individual and Media Rights (Creskill NT: Hampton, 2004).
65 L. B. Nielsen, License to Harass: Law, Hierarchy and Offensive Public Speech (Princeton: Princeton
Universitv Press, 2004) 12.
66 Peters, n 8 above, 177. The literature on free speech also exhibits a largely male authorship, not-
withstanding notable and diverse exceptions, such as Judith Butlers Excitable Speech, n 11 above,
Onora O'Neill's 2002 Reith Lectures, published as A Question of Trust (Cambridge: Cambridge
University Press 2002), and a range of feminist and critical race writers on pornography and hate
speech.
67 See eg J. Baxter (ed), Speaking Out: The Female Voice in Public Contexts (Basingstoke: Palgrave Mac-
millan 2006).
68 N. rairclough, Political Discourse in the Media: An Analytical Framework in A. Bell and P.
Garrett (eds), Approaches to Media Discourse (Oxford: Blackwell 1998) 141, 187 quoted in C.Walsh,
'Gender and the Genre of the Broadcast Political Interview' in Baxter, ibid 121.
(2010) 73(5) MLR 697-720 707
discriminatory enforcement of laws against offensive public speech.69 But the

above are sufficient to suggest that, if the conceptualisation and practice of public
speech tends to be limited through privilege, perhaps other conceptions of iden-
tity could assist in developing understandings of free speech.
The concept of free speech might be widened through remembering that it
may be about different forms of speech and different forms of contest at least as
much as it is about agreement. Something that could be added to conceptions of
speech for truth, democracy and autonomy: speech for the creation of multiple
publics. While some analyses might develop this from the idea of autonomy, it
could be used to reconfigure all those rationales for speech. Here, the work of
Michael Warner is used to illustrate this concept of speech for the creation of pub-
lics. It helps to explain the prevalence of conceptions of free speech in terms of
public conversation, as well as suggesting limitations in that approach.
In the essay 'Publics and Counterpublics,' Warner outlines seven qualities of a
public. This is a public that exists in relation to the circulation of texts, including
media texts. He suggests that one, such a public is self-organised; that is, organised
by something other than the state.70 Two, it involves a relation among strangers:
people who cannot be known in advance of their participation in speech.71 Three,
the addressee of public speech is both personal and impersonal:72 the speech is
addressed to us 'in common with strangers' and the fact that the recipients have a
'partial non-identity with the object of address' is part of what makes speech pub-
lic.73 Four, such a public is constituted through mere attention; it needs no more
activity than that.74 Five, the social space of a public is created through the reflex-
ive circulation of texts across time.75 Six, insofar as publics are seen to act, action
depends on that temporal circulation of texts.76 And seven, a public is a poetic
world making, not just 'rational discussion writ large'.77 For present purposes, a
little more can be said about several of these qualities.
One, such a public is self-organised. 'It exists by virtue of being addressed'.78 A
public in this sense is as much notional as empirical. In the stubborn utopia of free
speech,79 the counterfactual is at least as important as the empirical. This makes
particularly valuable Warner's next move, which is to foreground material limits
to a public. He says: although the premise of self-organizing discourse is necessary
... it is contradicted by' the 'material limits' to a public.80 These include limits
related to the 'means of production and distribution of public texts, and the social
conditions of access' to those texts. And they involve limits internal to that
69 See egj. Lennan, 'The "Janus Face" of Offensive Language Laws' (2006) 8 UTS Law Review 118 for
an examination of earlier studies into racially discriminatory police enforcement of offensive lan-
guage laws against Australian Aborigines in NSW
70 Warner, n 16 above, 67-74.
71 ibid 74-76.
72 ibid 76-87.
73 ibid 7$.
74 ibid 87-89.
75 ibid 90-96.
76 ibid 96-114.
77 ibid 114-116.
78 ibid 67.
79 Peters, n 8 above, 20.
80 Warner n 16 above, 72-73.
708 (2010) 73(5) MLR 697-720
Andrew T. Kenyon
particular public, including the need to presuppose forms of intelligibility [as

being] already in place'.81 Any textual public necessarily includes such limits.
The second point involves the way that a public is created by the circulation of
texts through time. Both a preceding and a responding discourse must be sup-
posed in order for a text to address a public. Between the earlier and future texts
a link must be postulated, a link which is interactive not just temporal. And the
interaction is usually imagined 'through metaphors of conversation.82 Public dis-
course is understood as though it were a discussion leading up to a decision.83
That is an aspect of free speech theory that is obvious, but perhaps overlooked:
speech of value is often understood as though it is discussion that ends with a
decision, and the form of decision that is commonly imagined is agreement.
Following from the above two qualities, all publics enact a politics. In this pas-
sage, Warner brings the points together:
A public seems to be self-organized by discourse but in fact requires pre-existing

forms and channels of circulation. It appears to be open to indefinite strangers but
in fact selects participants by criteria such as shared social space (though not neces-
sarily territorial space), habitus, topical concerns, intergeneric references . . . One
result is a special kind of politics . . .When any public is taken to be the public, those
limitations invisibly order the political world.84
This is underappreciated in many critiques. Arguments about Habermas's work

on the public sphere often include laments for how the public is closed and
excludes. Concerns about ideology, domination, and exclusion exist with cause.
But Warner emphasises what some criticisms can underplay: 'the tension inherent
in the form [of public speech] goes well beyond any strategy of domination. The
projection of a public is a new, creative, and distinctly modern mode of power.'85
Within this mode of power, there has often been an idealisation of conversa-
tion. But the metaphors of conversation are problematic: public texts address
onlookers' as well as 'parties', the agonistic interlocutor is coupled with passive
interlocutors, known enemies with indifferent strangers'.86 This is not conversa-
tional. In public speech:
the principal act is that of projecting the field of argument itself- its genre, its range
of circulation, its stakes, its idiom, its repertoire of agencies . . . The interactive rela-
tion postulated in public discourse . . . goes far beyond the scale of conversation or
discussion.87
Thus public speech is not organised along lines of utterance followed by response,
'but by potentially infinite axes of citation and characterization'.88
81 ibid 73.
82 ibid 90.
83 ibid 123.
84 ibid 106-107.
85 ibid 111.
86 ibid 90.
87 ibid 91.
88 ibid
(2010) 73(5) MLR 697-720 709
Third, as the above quotation suggests, public speech is performative. It is

world-making:
Public discourse says not only 'Let a public exist' but 'Let it have this character, speak
this way, see the world in this way' It then goes in search of confirmation that such a
public exists, with greater or lesser success - success being further attempts to cite,
circulate, and realize the world understanding that it articulates.89
With this view of the performative nature of public speech, Warner discusses
counterpublics. Here Warner draws from and broadens Nancy Frsers post-
Habermasian argument that speech should not just be thought of as rational con-
versation aimed at consensus.90 These publics mark themselves less from a wider
or general public, than from a dominant public and from the norms of speech
used within that public. The conflict enacted by counterpublics 'extends beyond
policy questions ... to the speech genres and modes of address that constitute the
public'.91 Counterpublics may well use discourse that could evoke hostile
responses, or at least be thought indecorous.92 In a phrase close to Posts view about
the role of public speech in relation to identity,93 Warner observes that 'when peo-
ple address publics, they engage in struggles . . . over the conditions that bring
them together as a public'.94 (In both Post and Warner, there is here a consideration
of time and its passage in relation to speech, a dimension which may be under-
acknowledged in some conceptualisations of free speech).
Thus speech is not just for truth or democracy, but for the creation of publics
through self-organised and necessarily limited discourses of texts which circulate
across time to bring about particular political orderings. Such discourse might be
thought of as conversation, but it has distinct qualities from conversation where
that is understood to involve spontaneous feedback across multiple channels that
is subject to egalitarian rules of engagement and aimed at agreement. That idea of
conversation is a model which public speech cannot meet.
DISCURSIVE PUBLICS AND LAW
What might such an approach mean in law? Prior to examin

legal doctrine might be understood through the above analysi
liminary points to note. First, the idea of speech as convers
dency, within media studies as within law. Noticing the tend
allow for a richer understanding of aspects of law. Second,
public speech derived through this reading of Warner sugg
for a particular approach to speech - the 'proper' princ
89 ibid 114.
90 N. Fraser, 'Rethinking the Public Sphere: A Contribution to the Critiq
Democracy' in C. Calhoun (ed). Habermas and the Public Svhere (Cambridge. MA: MIT Press. 1992V
91 Warner, n 16 above, 119. See also D. Nolan, 'Media, Citizenship and Governmentality: Defining
"The Public" of Public Service Broadcasting' (2006) 16(2) Social Semiotics 225, 230.
92 ibid 119.
93 See text accompanying n 51-54 above.
94 Warner, n 16 above, 11.
710 (2010) 73(5) MLR 697-720
Andrew T. Kenyon
determine free speech law - than a condition-universal of public speech.95 That is,
these are qualities that inhere in speech more than they set out a purpose
that is to be advanced through speech. However, the inescapability of the condi-
tion still invites a questioning of traditional free speech rationales and laws: to
what degree are such qualities of public speech envisaged within those rationales
and laws?
Comparing defamation law in the US and other common law countries offers
an interesting context in which to consider this. As explained below, the US
departed markedly from the English tradition of defamation law more than 45
years ago. There was no immediate response from other jurisdictions, but devel-
opments in defamation law occurred during the last 10 to 15 years in many coun-
tries that share the English common law tradition. Changes have been seen in
countries including Australia,96 Canada,97 Hong Kong,98 India,99 Malaysia,100
New Zealand,101 South Africa,102 and the UK itself.103 Generally the develop-
ments outside the US mean that, where material is published to a wide audience,
defamation defendants can establish a form of qualified privilege if they show that
the publication concerned a matter of public or political interest and was made
responsibly or reasonably. The tendency to conceptualise speech in conversational
terms allows one to appreciate the plausibility and appeal of these developments
in the law, but also to understand the limitations that they are likely to have in
application. The marked difference that still exists between American defamation
law and the law in other common law jurisdictions also suggests the presence of
something beyond a conversational idea of speech within the US approach.
The situation can be illustrated through the pivotal decision of NewYorkTimes v
Sullivan104 - a case which, it is worth noting here, involved contentious public
speech during the civil rights movement. The judgment includes one of the most
legally quoted instances from the English-speaking world of an approach to
speech which does not appear to be so conversational. And it reveals ideas of dis-
cursive publics and counterpublics closer to those set out above through the ana-
lysis of Warner. In Sullivan, the US Supreme Court dealt with the effect of the
first amendment on defamation law and the decision offers a classic enunciation
of US free speech law. In Sullivan, Brennan J stated that the US has 'profound
national commitment to the principle that debate on public issues should be unin-
hibited, robust and wide-open.105 Uninhibited, robust and wide-open debate
sounds less conversational than confrontational. Within such debate, plural and
agonistic publics may arise. Their speech may conflict 'with the norms that
95 Fish, n 12 above, 208-209 characterises agonistic politics with the same label.
96 EgTheophanous v Herald & Weekly Times (1994) 182 CLR 104 (Theophanous); Lance, n 38 above.
97 Grant v Torstar 2009 SCC 61; (2009) 79 CPR (4th) 407.
98 Abdul RazzakYaqoob vAsiaTimes Online [20081 3 HKC 589.
99 Rajagopalv State of Tamil Nadu [1995] AIR (SC) 264.
100 Eg Dato Sen Anwar Ibrahim v Dato Seri Dr Mahathir Mohamad [2001] 2 MLJ 65; Irene Fernandez v
Utusan Melavu (M) Sdn Bhd [20081 2 CLI 814.
101 Lange v Atkinson [2000] NZCA 95; [2001] NZLR 257.
102 National Media v Bogoshi [1999] 1 BCLR 1.
103 Eg Reynolds v Times Newspapers [2001] 2 AC 127 (Reynolds); Jameel v Wall Streetjournal Europe SPRL
[20061 UKHL 44; [20071 1 AC 359 (lameel).
104 Sullivan, n 17 above.
105 ibid, 270.
(2010) 73(5) MLR 697-720 711
constitute the dominant culture as public';106 they may seek to use different
speech genres and modes of address'107 in the endlessly controversial' formation
of collective and public identities.108
Doctrinal consequences of this national commitment can be seen. The aphor-
ism of Brennan J began a transformation of traditional defamation law in the
US.109 Before Sullivan, the law largely took the following approach.110 It is the
approach that still applies, in general terms, in other common law jurisdictions
such as England, Australia, Canada and New Zealand. First, it must be proven
that the defendant published material. This means merely that the material was
received by someone other than the claimant (or plaintiff, which remains the term
in many jurisdictions),111 so this element is met by media publications of any form
and indeed by all public speech. Second, the material must identify the claimant.
This might be through expressly naming them, but the law asks merely whether
someone who knows the claimant would think they have been identified, so
quite oblique or inadvertent references can amount to identification.112 As with
the question of publication, there is usually no argument that the media has iden-
tified the claimant. Third, the claimant must prove the material conveys a defama-
tory meaning; that is, it could be expected to harm the claimant's reputation and
would make ordinary people think less of them.113 This is not a very difficult test
to meet. Material that is critical will usually meet the legal test of what is defama-
tory.114 And opinion - not only factual statements - can be defamatory under the
traditional law.
Claimants need only establish publication, identification, and defamatory
meaning. Under the traditional approach, they need not prove that the publisher
was careless or at fault in terms of the content published;115 they need not prove
1 06 Warner, n 16 above. 112.

107 ibid 119.
108 Post, n 14 above, 167.
109 For an overview of the decision, see eg A. Lewis, Make No Law: The Sullivan Case and the Firs
Amendment (New York: Random House, 1991). For a detailed presentation of the US law, see eg
R. A. Smolla, Law of Defamation (New York: Thomson, 2nd ed, 1997, updated bi-annually).
110 For analysis of English defamation law and, eg, its Australian, New Zealand and Canadian deri
vatives, which in many ways mirror this general approach, see eg B. Neill, R. Rampton,T. Atkin-
son, A. Eardley and H. Rogers, Duncan and Neill on Defamation (London: LexisNexis, 3rd ed
2009); P. Milmo and W V. H. Rogers (eds), Gatley on Libel and Slander (London: Sweet & Maxwel
Thomson Reuters, 11th ed, 2008); A. T. Kenyon, Defamation: Comparative Law and Practice (Abing-
don: UCL Press, 2006); D. Butler and S. Rodrick, Australian Media Law (Rozelle, NSW: Lawbook
Co, 3rd ed, 2007); D. Rolph, M. Vi tins andj. Bannister, Media Law: Cases, Materials and Commentary
(Melbourne: Oxford University Press, 2010); J. Burrows and U. Cheer, Media Law in New Zealand
(South Melbourne: Oxford, 5th ed, 2005); R. E. Brown, The Law of Defamation in Canada (Scar
borough, Ont: Carswell, 1994, also available in updated looseleaf form).
Ill See eg Byrne v Deane [19371 1 KB 818; Dow Jones v Gutnick [20021 HCA 56; (2002) 210 CLR 575.
112 See eg Cassidy v Daily Mirror [1929] 2 KB 331.
113 See eg Parmiter v Coupland (1840) 6 M&W 105; 151 ER 340; Scott v Sampson (1882) 8 QBD 491; Sim
v Stretch [1936] 2 All ER 1237.
114 A decision such as that in Kennett v Nationwide News (unreported, Vic SC, Ashley J and jury, 1
March 1999) is very much an exceptional case. In that instance, allegations including that the
plaintiff politician had lied by denying extramarital sexual activity with two women were not
found to have conveyed a defamatory meaning; see Kenyon, n 111 above, 180-183.
115 Technically, the act of publication (the communication of the material to a recipient other than th
claimant) must be shown to have been intentional or negligent. However, this particular legal
712 (2010) 73(5) MLR 697-720
Andrew T. Kenyon
that what was published was false; and they need not prove that they suffered any
harm. This is unusual compared with most civil actions such as those about
infringing copyright, breaching a contract, or being negligent. Thus, important
reasons for traditional defamation law being said to chill' speech are that, on paper,
it takes relatively little for something to be defamatory, harm is then presumed to
have occurred, and the potential damages have traditionally been unconstrained.
All this leaves publishers of defamatory statements liable unless they can estab-
lish a defence. Apart from defences such as those for fair reports by the media of
what is said in parliaments or courts,116 the main traditional defences for the media
have required it to prove that a publication is true,117 or that it is an honest opinion
or comment118 - but for defamation law that means an opinion or comment
based on facts that are proven to be true or privileged.119 So for both defences
related to truth and opinion, establishing the truth underlying the publication is
a key requirement. Thus, many defendants in jurisdictions such as England, Aus-
tralia, Canada and New Zealand will be liable if they cannot prove the publica-
tion true by evidence that is admissible in court. The development of wider
privilege defences in many of the traditional commonwealth jurisdictions has
changed this position somewhat, but not nearly to the level of US protection
for defamatory speech.
While the above approach prevailed in general terms in the US until the 1960s,
it changed dramatically through Sullivan and subsequent cases.120 Under the Sulli-
van rules, it is more difficult to sue than under traditional defamation law. Plain-
tiffs who are public officials121 or public figures122 must prove the three elements
mentioned above: publication, identification, and defamatory meaning. But these
plaintiffs must also establish that the defendant published with actual malice .123
This entails proving the publication conveys factual material (rather than opi-
nion) that is false, and which the publisher believed to be false when it was pub-
lished. The plaintiff must prove the publisher actually knew the material was false,
or at least had a 'high degree of awareness' of its 'probable falsity' and recklessly
disregarded that danger.124 In addition, the plaintiff must establish actual malice
with convincing clarity', which is a standard of proof substantially higher than
the usual standard in civil litigation of the balance of probabilities.125
The US law suggests the media and other speakers can criticise public figures
without liability for defamation, so long as they neither know nor actually think
concept of 'fault' in publication is quite distinct from the idea of 'fault' as it is commonly under-
stood in terms of a failure related to the defamatory content of what was published. Cf the US
aooroach to fault in terms of the content oublished. n 123-124 below.
116 See eg Defamation Act 1996 (UK), s 15 and Sched 1.
117 Under the defence of justification, see eg Sutherland v Stopes [1925] AC 47 and Defamation Act
1952 (UK), s 5.
118 Under the defence of fair comment, see eg Tse Wai Chun Paul v Albert Cheng [2001] EMLR 31;
British Chiropractic Association v Singh [2010] EWCACiv 350; Defamation Act 1952 (UK), s 6.
119 See eg Merivale v Carson (1887) 20 OBD 275.
120 See n 17 above.
121 Sec eg Sullivan, ibid.
122 See eg Curtis Publishing v Butts 388 US 130 (1967 .
123 See eg Sullivan, n 17 above, 279-280.
124 St Amant v 1 hompson, ^i) Ub 111, l' (196).
125 Sullivan, n 17 above, 270.
(2010) 73(5) MLR 697-720 713
that the publication is false. Famously, the US Supreme Court has said that com-
mon law defences that rely on truth are insufficient to protect public debate,
because a 'rule compelling the critic of official conduct to guarantee the truth of
all [its] factual assertions' inevitably leads to self-censorship.126 The commitment
to uninhibited, robust and wide-open debate underlies a very different concep-
tion of what forms of public speech should be allowed by law. They are forms of
speech that seem less closely aligned to conversational ideas of openness, exchange
and agreement. Incommensurate worldviews can be offered, in styles of speech
that challenge existing mores. Different articulations of identity can be made. It
is worth noting that a similar non-conversational view can be seen within the
'fighting faiths' of Holmes J, notwithstanding the ways in which the marketplace
model of speech can be linked to ideas of reasonable, conversational speech.127
What of more recent developments in many other common law jurisdictions?
Here the examples of English and Australian law are used, but they are merely
illustrations of broadly similar changes in many countries.128 In England, the
House of Lords' decision in Reynolds v Times Newspapers developed what is known
as Reynolds privilege.129 It applies where public interest material is published to a
wide audience in a responsible' fashion. In Reynolds, Lord Nicholls set out ten
illustrative factors to be considered in deciding whether the publication was
responsible.130 The factors mean that courts will need to consider matters such as
the publications importance, urgency and tone, as well as the informations source
and any steps taken by the publisher (or another body) to attempt to verify the
information before publication. Case law since Reynolds suggests that the defence
will be difficult to establish where publications are sensational in style,131 use unre-
liable sources132 or are made without claimants being contacted133 - unless clai-
mants would have no relevant information to supply.134 It is also clear that a
reportage' form of the defence can protect some publications that merely report
allegations that have been made by others, even if no attempt has been made to
verify the allegations,135 and the defence should be applied in a practical and flex-
ible manner'136 with some deference to editorial discretion. As Lord Hoffman
noted injameel v Wall Streetjournal Europe, the most important subsequent decision
on Reynolds privilege:
126 ibid 277.

127 See text accompanying n 28 and n 31-32 above.
128 See notes 96-103 above.
129 Reynolds, n 103 above.
130 ibid 205.
131 Eg GrobelaarvNews Group Newspapers [2001] EWCACiv 33; [2001] 2 All ER 437 (Grobelaar); Gallo-
way v Telegraph Group [2006] EWCACiv 17; [2006] EMLR 11 (Galloway).
132 Eg James Gilbert v MGN [2000] EMLR 680.
133 Eg Galloway, n 132 above.
134 Eg Jameel, n 104 above.
135 Eg Al-Fagih v H H Saudi Research & Marketing UK [201J EWCA Civ 1634; [2U02J EMLR 13;
Roberts v Gable [2007] EWCA Civ 721; [2008] QB 502; see uso Jameel n 104 above at [62]; although
the 'bounds of reportage' remain subject to further argument and decision: Milmo and Rogers, n
110 above, [15.18] and the theoretical basis of the defence within Reynolds privilege can be ques-
tioned: J. Bosland, 'Republication of Defamation Under the Doctrine of Reportage: The Evolu-
tion of Common Law Qualified Privilege in England and Wales' (2011) 31 OILS forthcoming.
136 Bonnick v Morris [2002] UKPC 31; [2003] 1 AC 300 at [24].
714 (2010) 73(5) MLR 697-720
Andrew T. Kenyon
[W]hereas the question of whether the story as a whole was a matter of public inter-
est must be decided by the judge without regard to what the editor's view may have
been, the question of whether the defamatory statement should have been included
is often a matter of how the story should have been presented. And on that question,
allowance must be made for editorial judgment.137
Within some of the cases at least, there appears to be an aversion to speech that has
not been presented in an appropriate style; that is, the publication in question did
not appear to judges to be part of an open exchange that could lead to agreement.
This can be seen in relation to the difficulties that 'tabloid' newspaper defendants
have faced in relation to the tone of their publications,138 but also in the impor-
tance of seeking the claimant s version of events, which 'is perhaps the core Rey-
nolds factor'.139 At a more general level, the factors in Reynolds bring to mind the
mode of speech that would be suitable to scholarly discourse, or the 'perpetual
seminar' of Mill's free speech.140 That is 'the sort of neutral, investigative journal-
ism or book,141 or even the seriously dull' journalism,142 which Reynolds privilege
aims to protect and encourage. It is less a recognition that public speech enacts
struggles over the conditions ofthat very public, that it couples agonistic and pas-
sive members, and that it is centred on 'projecting the field of argument itself'.143
In Australia, a series of constitutional cases since 1994 remodelled defamation
law, leading to what is called the Lange qualified privilege defence.144 It applies
where 'political communication is published to a wide audience, and the conduct
of the publisher in the circumstances is reasonable. More recently, after several
decades of attempts,145 uniform defamation statutes were introduced in all Austra-
lian states and territories.146 But the uniform legislation, which has operated since
early 2006, is not revolutionary by any means. It leaves in place the general model
described above. Harm is still presumed, establishing truth is still important for
many defendants, and so forth. The traditional common law principles remain
significant. The uniform legislation does benefit speech by making the law con-
sistent throughout Australia, and in removing or lessening certain technical pro-
blems that existed particularly under the former NSW law.147
However, the uniform Defamation Acts in Australia do one notable thing to
privilege defences. They introduce a statutory privilege that can apply to 'reason-
able media publication and is not limited to the 'political communication to
which Lange is limited. To appreciate the significance of the statutory privilege,
it needs to be recognised that the political speech protected by Lange appears to
137 Ee JameeL n 104 above at [511.

138 See eg Grobelaar, n 132 above.
139 Milmo and Rogers, n 110 above, [15.14].
140 Seen 29 above.
141 Seejameel, n 104 above at [35] (Lord Bingham); Charman v Orion Publishing [2007] EWCA C
[2008] 1 All ER 750.
142 Jameel, n 104 above at [150] (Baroness Hale).
143 Warner, n 16 above, 91; see also re Post text accompanying n 51-54 above.
144 It is named after Lange, n 38 above.
145 See eg Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, Repo
(Canberra: AGPS, 1979).
146 See eg Defamation Act 2005 (NSW).
147 See eg, Kenyon, n 111 above, chapter 10.
(2010) 73(5) MLR 697-720 715
be quite narrow in scope. Under Lange, it appears that speech must be linked to
the system and institutions of government set out in the Australian constitution
and must be communication of a sort relevant to the electoral decisions of voters.
The Lange defence does not appear to encompass all speech relevant to the devel-
opment of public opinion on the whole range of issues which an intelligent citi-
zen should think about'.148 In this, the Lange privilege is quite different in scope
from the Reynolds defence in English defamation law. Reynolds' protection of
responsible journalism encompasses all matters of public interest,149 a breadth of
coverage that appears to be the same as the newer Australian statutory privilege.
Under the uniform Defamation Acts, Australian law now provides a general
defence for media publications that cannot be proven true, if the publication is
about what judges think of as a matter of proper public concern and the circum-
stances of publication were reasonable'. As to what is reasonable, the Act provides
an inclusive list of factors, with broad similarity to Lord Nicholls' list in Reynolds.
It includes the extent to which the material is of public interest, the seriousness of
any defamatory imputations it conveys, the sources relied on and steps taken to
attempt to verify the material by the publisher, the degree to which the material
contains the plaintiffs side of events, and the degree to which it (distinguishes
between suspicions, allegations and proven facts'.150 There is little substantive case
law on reasonableness under the statutory defence, but the Australian High Court
made comments about what is required to establish reasonableness for the pur-
poses of the Lange defamation defence.151 Generally, before publishing material
the defendant must take proper steps to verify the materials truth, have reasonable
grounds to believe it to be true, and not actually believe it to be untrue. In addi-
tion, the publisher usually should have sought and published a response from the
person or entity defamed in the publication. As Michael Chesterman and other
commentators have pointed out, the courts may well apply these sorts of tests so
that it is very hard for the media to succeed.152 That has certainly been true for a
statutory defence for reasonable publication which existed in the state of New
South Wales for several decades before the recent national reforms.153
In simple terms, the English and Australian legal developments mean that not
all defamatory public speech must be proven true; it is enough if it was published
responsibly or reasonably. It seems that such publication is thought to foster qual-
ity' public discourse. This might well accord with many traditional rationales for
free speech, such as Meiklejohns vision of speech and democracy.154 But those
rationales tend to be conversational in style; they imagine public speech more as
reciprocal engagement aimed at agreement, than as affective world-making. The
148 Barendt, n 7 above, 162 (see also 1st ed, 1985, 152 which was cited by the Australian High Court in
Theophanous, n 97 above, 124).
149 See especially Jameel, n 104 above.
150 Eg Defamation Act 2005 (NSW), s 30(3).
151 See Lance, n 38 above.
1 52 M. Chesterman, Freedom of Speech in Australian Law: A Delicate Plant ( Aldershot: Ashgate, 2000)
100-106.
153 See the former Defamation Act 1974 (NSW), s 22, and egjohn Fairfax Publications v Zunter [2006]
NSWCA 227.
1 54 See text accompanying n 43-48 above, and eg Theophanous n 97 above, 124 (Mason CJ)
there is express reference to Meiklejohn.
716 (2010) 73(5) MLR 697-720
Andrew T. Kenyon
fact that another understanding of public speech can be offered - and that it can be
seen within classic US statements on speech - helps to explain why US law might
have arrived at such a different position on these aspects of defamation law. In the
judicial reconciliation of reputation and free speech, which is Virtually axiomatic'
as the stated role for defamation law,155 it seems that outside the US such public
interest speech must be of a particular value to be protected. In jurisdictions such
as England and Australia, such defamatory speech must be closer to the supposed
ideal of a conversation. And there is little recognition of any need for vigilance in
support of speech that is loathed and thought to be 'fraught with death'.156 It is a
notable disjunction from other areas of free speech law, such as vilification or hate
speech. In part, this could simply follow from the observation that different areas
of law can be seen to draw on the free speech rationales of truth, democracy and
autonomy in different ways,157 with defamation 'betray [ing] a bias for the argu-
ment from democracy'.158 But utilising the idea of conversational speech helps to
explain differences between the US and non-US positions; and within the terms
of those speech rationales, it suggests a difference in the conception of democracy.
Judicial statements in jurisdictions outside the US also refer to non-conversa-
tional concepts about speech, but perhaps more so outside defamation law. For
example, the Australian High Court decision in Coleman v Power*59 illustrates a
court grappling with speech made during public protest and a statute that created
a criminal offence for the use of 'insulting words'. A striking difference between
judgments in the case lies in how speech is understood and valued.160 For exam-
ple, in a minority view, HeydonJ said:
Insulting words are a form of uncivilised violence and intimidation . . . Insulting

words . . . are inconsistent with civilised standards ... In promoting civilised stan-
dards [the section] . . . improves the quality of communication.161
This analysis appears to have surprised Kirby J, who suggested, in contrast:
Reading the description of civilised interchange ... in the reasons of Heydon J, I

had difficulty in recognising the Australian political system as I know it. His Hon-
our's chronicle appears more like a description of an intellectual salon where civility
always (or usually) prevails . . . One might wish for more rationality, less superfici-
ality, diminished invective and increased logic and persuasion in political discourse.
But those of that view must find another homeland . . . [I]nsults and emotion . . .
are part and parcel of the struggle of ideas . . . [Law] does not protect only the
whispered civilities of intellectual discourse.162
155 L. McNamara, Reputation and Defamation (Oxford: Oxford University Press, 2007) 1; see also D.
Rolph, Reputation, Celebrity and Defamation Law (Aldershot: Ashgate, 2008).
1 56 Abrams, n 4 above; see also text accompanying n 28 above.
157 See eg Fenwick and Phillipson, n 39 above, who focus their analysis on how audience rights are
furthered by one or more free speech rationales.
158 D. Milo, Defamation and Freedom of Speech (Oxford: Oxford University Press, 2008) 55.
159 n 6 above.
160 ibid.
161 ibid at [323].
162 ibid at 238-239.
(2010) 73(5) MLR 697-720 717
Gummow and HayneJJ in ajoint judgment also recognised the longstanding role
of 'insult and invective in political communication,163 and McHugh J noted that
'insults are a legitimate part of . . . political discussion.164 While HeydonJ suggests
that his desired civilised discourse could still amount to 'full, compelling, tren-
chant' debate,165 it is unclear how this would arise in practice. Rather, the
approach sounds far closer to the conversational idea of speech examined above.
In any event, his comments are striking for doing precisely what Post suggests is
not to be done under the first amendment: enforce through law particular stan-
dards of civility in public discourse. In contrast, Kirby J echoes Oliver Wendell
Holmes - and appears close to later analysts such as Post and Warner - in his refer-
ence to the struggle of ideas' and his decrying of attempts to legally enforce 'whis-
pered civilities'. But, as this example also suggests, judicial analysis remains faced
with a difference between these comments on public discourse and protest and
the laws more conversational approach to important types of defamatory speech.
CONCLUSION
Appreciating public speech's self-organisation, with its neces

cursive limits and its often implicit characterisation as conve
deal to conceptions of free speech. Free speech is not just co
dialogic conversing is typically implicit in rationales for sp
be value in another approach, one that does not run the risk
flict, disagreement, and different world-making projects th
speech as conversation. Speech for creating publics, or ago
speech, highlights an aspect of public speech that warrant
when considering common existing free speech rationales.
The analysis helps to explain why defamation law in the U
other common law countries, even though many of the rati
port of free speech are common. It also provides reasons wh
defamation may have merits. US defamation law, by focusin
tive knowledge of the false facts conveyed by what they pu
disregard of that falsity, appears to allow more dissenting,
This quality of public speech is unlikely to be the reasonabl
nalism' envisaged in Anglo-Australian defamation law.167 I
what could be called excitable speech.'168 Examples cer
163 ibid at [1971.

164 ibid at [105].
165 Mat [330].
166 This is so at least in relation to public plaintiffs; although the law also
English common law tradition for private plaintiffs; see eg D. A. Ande
spective' in S. Deakin, A. Johnston and B. Markesinis, Markesinis and D
Clarendon Press, 5th ed, 2003); Kenyon, n 111 above, chapter 8. A key cha
plaintiffs suing the media must prove the material is false and prove some
of the content of what was published. The degree of fault required of
gence or greater fault depending on the US state in question.
167 See Lange, n 38 above; Reynolds, n 104 above.
168 See Butler, n 11 above.
2010 The Author. Journal Compilation 2010 The Modern Law

718 (2010) 73(5) MLR 697-720
Andrew T. Kenyon
performative speech becoming entangled in defamation litigation.169 English and

Australian defamation law, in comparison, appears far less able to depart from a
conversational ideal of speech. Requiring subjective knowledge of falsity, as US
defamation law does, allows public debate to include incommensurable world
views in ways that do not appear possible where the law requires publication to
be responsible or reasonable', as under the relevant English and Australian defa-
mation defences.
The limitation of speech imposed under the Sullivan rules is comparatively
weak - in slightly simplified terms, one should not publish a defamatory fact that
one knows is false. However, it is not a rule that necessarily follows from the ana-
lysis of public speech above. Understanding the self-organised and inherently
limited discourses of public speech does not provide a simple guide as to the point
at which law would limit some speech. That may well remain more a political
debate.170 But the analysis does suggest how the US legal approach allows for peo-
ple, through speech, to engage in struggles . . . over the conditions that bring
them together as a public', as Warner has said.171 Or, in Post's words, how it allows
public speech to be 'precisely the site of political contention over collective iden-
tity and public opinion.172
The analysis presented here makes no particular claim based on current com-
munication technologies; its focus is on the mode of public speech. However, par-
ticipatory approaches to speech such as Post's may well gain support from the
development of digital communication technologies. As Jack Balkin has com-
mented, in an analysis of speech and democracy which has a clear recognition of
conflict and explicitly moves beyond Meiklejohn:
I believe that the point of freedom of speech is to promote a democratic culture.

What is a democratic culture? It is a culture in which people can participate actively
in the creation of cultural meanings that in turn constitute them. A democratic cul-
ture is democratic not in the sense that everyone gets to vote on what is in culture.
It is democratic in the sense that everyone gets to participate in the production of
culture.173
Here, freedom is performed by people 'through their participation in culture'.174 If

Balkin is correct, changes in patterns of mediated communication will see greater
169 In Australia, see eg Brander v Ryan (2000) 78 SASR 234; Australian Broadcasting Corporation v Hanson
(unreported, Qld CA, de Jersey CJ, McMurdo P, McPhersonJA, 28 Sept 1998); Tony Fitzgerald,
'Telling the Truth, Laughing' (1992) 92 Media International Australia 11; E. Handsley and G. Davis,
'Defamation and Satire: Hanson v Australian Broadcasting Corporation' (2001)9 Torts Law journal
1; in the US, see eg Hustler Magazine v Falwell 485 US 46 (1988) and R. C. Post,'The Constitutional
Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Maga-
zine v FalweW (1990) 103 Harvard Law Review 601.
170 Consider, eg, Fish, n 12 above.
172 Post, n 14 above. 167.
173 J. M. Balkin, 'How Rights Change: Freedom of Speech in the Digital Era' (2004) 26 Sydney Law
Review 5, 12 See alsoj. M. Balkin, 'Digital Speech and Democratic Culture: A Theory of Freedom
of Expression for the Information Societv' (2004) 79 NewYork University Law Review 1.
174 ibid, IS.
(2010) 73(5) MLR 697-720 719
recourse to participatory accounts of free speech. And within that, the idea of
conversation will deserve careful interrogation.
Two points should be noted in closing. First, some commentary about
mediated speech uses the term conversation without meaning only the egalitarian
pursuit of agreement which has been queried here. A media studies example
comes from Graeme Turners work on current affairs television - a type of pro-
gramming which is all about the 'public conversation as he puts it.175 Turner
makes an apt aside about a televised encounter between opponents on a conten-
tious public issue and the pathos the presenter evokes in not managing to bring
about agreement between all the participants through the process of the televised
encounter.176 The speakers in this encounter may well have quite irreconcilable
positions, and it is clear that Turners conversation is not at all close to the idea of
spontaneous feedback across multiple channels that is subject to egalitarian rules
of engagement. Rather, it seems closer to the ongoing articulation of a public life
which is characterised by difference and incommensurability 177
Second, recognising an idea of free speech beyond conversation does not bring
about greater public debate. As Warner comments, 'the ideal of critical discussion
was itself never enough to bring the public sphere into being . . . The image of
discussion writ large is necessary to the public sphere as a self-understanding but
not as an empirical reality 178 In regard to this, he and others have noted Nina
Eliasophs study Avoiding Politics as relevant179 - even if it is based on normative
ideas of speech far closer to the conversational than the agonistic.180 Eliasoph
documents how such conflict appears to be avoided in local group settings. As
speech approaches controversial topics, 'people tend to shut up ... Even active
volunteers in civic groups construct their volunteering so as to avoid risky discus-
sion.'181 They avoid dissent, resulting in an evaporation of conflictual politics in
the public sphere. That analysis need not undermine a different vision of speech,
one based on dissent, on divergent views, and on the articulation of diverse col-
lectivities or counterpublics. But it underlines the difficulty in enacting such a
form of public speech. Once again, the counterfactual aspects of the stubborn
utopia of speech should be remembered.
175 G. Turner, Ending the Affair (Sydney: UNSW Press, 2005) 149.
176 ibid 23.
177 G. Craig, 'Perpetual Crisis: The Politics of Saving the ABC (2000) no 94 Media International Aus-
tralia 105,112.
179 N. Eliasoph, Avoiding Politics: How Americans Produce Apathy in Everyday Life (Cambridge: Cam-
bridge University Press, 1998). See also J. Lewis, S. Inthorn, and K. Wahl-Jorgensen, Citizens or
Consumers? What the MediaTell Us About Political Participation (Maidenhead: Open University Press,
2005) 137-138.
180 Eg Warner, n 16 above, 146 notes: 'Eliasoph herself does not question the assumption that the con-
tinuum of public-minded critical discussion is what the public sphere has been or should be
about. Her book is driven by a sense of outrage that actual conversations fail to accord with the
ideal.'
181 ibid '45.
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What Conversation?

Free Speech and Defamation Law

MODERN LAW REVIEW

Volume 73 September 2010 No 5

What Conversation? Free Speech

Common rationales for free speech are offered in legal

Rationales offered in support of free speech follow comm

of public speech. Recognising those qualities alters what is seen to be at stake in

Advertising may offer another instance of speech outside a conversational model,5

15 See text accompanying n 50-53 below.

RATIONALES FOR FREE SPEECH: TRUTH, DEMOCRACY,

Multiple rationales for protecting speech are commonly offer

Some approaches to speech and truth do seek to acknow

Without contraries, there is no knowledge; without knowledge, there is no virtue.

32 Post quotes this passage from Mill (n 27 above): n 14 above, 164.

its recourse to the European Convention on Human Rights.39 And the US

self-government here would see a managed, collective inquiry in which a wide

47 Meiklejohn, Political Freedom, n 43 above, 86.

SPEECH FOR THE CREATION OF PUBLICS

As well as an interest in theoretical approaches to speech and

discriminatory enforcement of laws against offensive public speech.69 But the

particular public, including the need to presuppose forms of intelligibility [as

A public seems to be self-organized by discourse but in fact requires pre-existing

This is underappreciated in many critiques. Arguments about Habermas's work

Third, as the above quotation suggests, public speech is performative. It is

DISCURSIVE PUBLICS AND LAW

What might such an approach mean in law? Prior to examin

1 06 Warner, n 16 above. 112.

126 ibid 277.

137 Ee JameeL n 104 above at [511.

Insulting words are a form of uncivilised violence and intimidation . . . Insulting

This analysis appears to have surprised Kirby J, who suggested, in contrast:

Reading the description of civilised interchange ... in the reasons of Heydon J, I

Appreciating public speech's self-organisation, with its neces

163 ibid at [1971.

2010 The Author. Journal Compilation 2010 The Modern Law

performative speech becoming entangled in defamation litigation.169 English and

I believe that the point of freedom of speech is to promote a democratic culture.

Here, freedom is performed by people 'through their participation in culture'.174 If

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