What Conversation? Free Speech and Defamation Law

DOIhttp://doi.org/10.1111/j.1468-2230.2010.00815.x
Publication Date01 Sep 2010
AuthorAndrew T. Kenyon
THE
MODERN LAW REVIEW
Volume 73 September 2010 No 5
What Conversation? Free Speech and Defamation Law
AndrewT. Kenyon
n
Common rationales for free spe ech are o¡ered in legal writing across many countries, even
though their laws regulating speech di¡er markedly. This article suggests another way of think-
ing about speech, based on particularqual ities of speech which helpto explain why public speech
^ or at least public speech perceived asvaluable for cultural, political or other purposes ^ is fre-
quently thoughtof as a conversation.Thatofte n appears as the ideal, but a conversational concep-
tion can limit what is see n to be at stake in the control of speech. Instead of imagining public
speech as open exchange that leads to agreement,here a slightly di¡erent vision is o¡ered based
more on the articulation of incommensurable world views and dissent. Implications of such an
approach are considered forscholarly understanding, particularly of defamation law^ a n area of
law commonly seen as important for the range and style of public speech.
INTRODUCTION
Rationales o¡ered in support of free speech follow common libe ral themes in
many locations, both geographic and academic.Within legal commentary, these
rationales are generally shared ac ross jurisdictions even though the laws regulating
speech in them di¡er markedly. This situation can be seen in relation to Anglo-
Americanfree speech literatureand defamation law. Defamation is a useful area of
law to consider in this regard:it is widely regarded as having signi¢cante¡ects on
public speech,
1
and it appears to be an area of law i n which ‘conversational’ ideas
about speech are weighed di¡erently across di¡erent jurisdictions. In light of the
similarity in ideas about free speech and di¡erences in defamation law, this article
examines rationales for speech and suggests they can overlook particular qualities
n
Professor and Deputy Dean, MelbourneLaw School and Joint Director,CMCL ^ Centre for Media
and Communications Law, University of Melbourne. This article has bene¢tted from research fund-
ing from the Australian Research Council,‘Defamation and Privacy: Law, Media and Public Speech’
(Kenyon, DP0985337). It also develops ideas presented at annual conferences of the Australian and
New Zealand Communication Associationand the International Communication Association.
1As well as being seen in much academic commentary and legalargument, there is also quite sub-
stantial empirical evidence in support of defamation law a¡ecting media content; see eg R. P.
Bezanson, G. Cranberg andJ. Soloski, Libel Law and the Press: Myth and Reality (New York: Free
Press,1987); E. Barendt,L. Lustgarten, K. Norrie and H.Stephenso n,Libel and the Media:TheChil-
lingE¡ect (Oxford: Clarendon Press,1997); C. Denta nd A.T.Kenyon,‘Defamation Law’s Chilling
E¡ect:A Comparative Content Analysis of Australian and US Newspapers’(2004) 9 Media &
ArtsLaw Review 89; R. L.Weaver,A. T. Kenyon,D. F. Partlett and C.P.Walker,The Right to Speak
Ill:Defamation,Reputation and Free Speech (Durham, NC:Carolina Academic Press, 2006).
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(5) 697^720
of public speech. Recognising those qualities alters what is seen to be at stake in
speech and it s control, and o¡ers anoth er axis through which to think about free
speech and law.
One way of understanding what is common across rationales for speech is to
recognise atendency to conceptualisepublic speech as if it werea conversation, or
at least to imagine that speech of value will tend towards the conversational in
style. While there are obvious connections to Jˇrgen Habermas’s conceptual
research into the public sphere,
2
the tendency exceeds anyconscious reference to
that particular tradition. Impliciti n much writingabout the media is the ideathat
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 theoryand 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 vili ¢cation o¡er just one example of the speech ‘fraught with death’
famously descr ibed by Ol iverWendell Holmes:
I think that we should be eternally vigilant against attemptsto 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 immediatecheck is required to save the country.
4
Advertising mayo¡er another instanceof 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 a¡airs, at least as that speech
is imagined withinjudicial 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 existi ngor bei ng sought for political speech. In relation to othe rl aws regulating
2See eg J. Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of
Bourgeois Society (Cambridge, MA: MIT Press, transT. Burger with F. Lawrence,1989); Between
Facts and Norms: Contributions toa DiscourseTheoryof Law and Democracy (Cambridge: Polity Press,
transW.Rehg,1996).
3J. D. Peters,‘Media as Conversation, Conversation as Media’ in J. Curran and D. Morley (eds),
Mediaand CulturalTheory (Abingdon: Routledge, 2006).
4AbramsvUnitedStates 250 US 616, 630 (1919) (Abrams) (HolmesJ i n dissent, Brandeis J agreed).See
also text accompanying n 28 below.
5At least where it does not also involve wider public or political issues, see eg BartholdvGermany
(1985) 7 EHRR 383; and in the US see Nike Inc vKasky 123 S Ct (2003) and the symposium,‘Nike
vKaskyand the Modern Commercial Speech Doctrine’ (2004) 54 CaseWesternReserveLaw Review
954.
6Consider ColemanvPo wer [2004] HCA 39; (2004) 220 CLR1 (Coleman) and text accompanying
n 159^165 below.
7E. Bare ndt, Freedom ofSpeech (Oxford: OxfordUniversity Press, 2nd ed, 2005)156.
Free Speech and Defamation Law
698 r2010The Author. Journal Compilation r2010The Modern Law ReviewLimited.
(2010) 73(5) 697^720

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