How liberty works … Trickle down conservative thoughts on free speech … Schism in the ranks … Law of Rulers Institute denied the implied freedom by a Sammy Griffith favourite … Reevaluation of Griffith’s legacy 

It was time for the “actual malice” test to get a good roasting, said the man who usurped Merrick Garland’s seat on the Supreme Court. 

This was in a libel case brought by Shkelzen Berisha, the son of a former Albanian prime minister who claimed a book published by Simon & Schuster linked him to an illegal arms deal. 

The book formed the basis of the film War Dogs. 

The Supreme Court said it wasn’t interested in hearing the case, but Gorsuch and Clarence Thomas in dissent said actual malice in the public figure doctrine needs to be revisited as the world has changed since the court’s landmark 1964 ruling in New York Times v Sullivan.

Thomas is concerned about “the proliferation of falsehoods” which he claims are protected by the free press ruling: 

“Instead of continuing to insulate those who perpetuate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires” – whatever they might be! 

Supreme Court seat thief Gorsuch added that 60 years or so ago the actual malice doctrine might have made more sense when there were fewer media outlets that had traditionally been more thorough and fact checky. 

“What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.” 

In March, DC appeals judge Laurence Silberman penned a rant, about “serious efforts to muzzle” Fox News, media “bias against the Republican Party”, and the need for the Supreme Court to end media protections in law suits brought by public figures.  

Silberman had picked up something that Thomas had said in a 2019 opinion complaining that the NY Times case was a policy driven decision that should have no part in constitutional law. 

The basis of these ideological assaults was that there was no bit of text in the Constitution that could be found to lay the groundwork for public figures and “actual malice”. 

Like a lot of moonstruck ideas from the US of A, it has found its way to Australia where Simon Steward, the High Court’s freshly minted double-breasted member has similar thoughts about black letters. 

There are differences, of course. The First Amendment protects individual rights, while the implied constitutional freedom in Australia is a limitation on law making. 

Steward came into his own in the recent case where a Queensland right-wing “think tank” LibertyWorks wanted the High Court to strike down its obligation to register its collaboration with the US Conservative Political Action Conference for a jamboree in Australia.  

LibertyWorks argued that the requirement to register with respect to “communication activities” under the Foreign Influence Transparency Scheme Act infringed the Constitutions’s implied freedom of political communication. 

A majority, including Steward, said the Act was not invalid on the implied freedom ground. Gageler and Gordon found that the legislation was incompatible. 

Again, Steward went looking for the bit in the Constitution where it talked about an implied freedom for political communication, and because he couldn’t find it he thought it probably didn’t exist. 

The originalists were squealing with delight, except for the boys at law shop Speed & Stracey, and its associated Law of Rulers Institute, who ran the case and hoped that any decent conservative judge would be a free speech warrior and strike down this bothersome piece of legislation. 

That was not to be – instead Steward went all foetal and said: 

“It is arguable that the implied freedom does not exist. It may not be sufficiently supported by the text, structure and context of the Constitution and, because of the continued division within this court about the application of the doctrine of structured proportionality, it is still not settled law.” 

He suggested that the implied constitutional freedom might be much narrower, applying only to legislation which had the effect of denying electors information at election time. 

Whatever, it justified “a reconsideration” by the court, or to leave it all to parliament to decide. 

People at the Samuel Griffith Society were among those who cheered Simon Steward’s High Court appointment, which had been given a big leg-up by uber-conservative Yarraside silk Stuart Wood. 

The chunky Wood is an adornment at the Griffith Society and has acted for clients endorsed by the Institute of Paid Advocacy, including Peter Ridd and Israel Folau. 

There was a glowing tribute to Wood from Steward in his 2018 Federal Court swearing in speech: 

“Friendship and collegiality are essential attributes of the life of a barrister. In my chambers, I had the good fortune of finding many wonderful friends. These include S.J. Wood QC, who has done so much for our bar …” 

Steward gave the Griffithites the benefit of his thoughts on how the taxation regime is unfair to poor, put upon, multinational corporations. 

Our correspondent Ginger Snatch has said that Steward’s appointment bears the fingerprints of a Liberal Party stitch-up, with numerous nods, winks and nose taps delivered to their appointed parliamentary plaything, Josh Frydenberg. 

Now it’s the turn of Sammy Griffith to come in for reassessment. In his latest book, Truth-Telling, historian Henry Reynolds has some strong things to say about the hero of Queensland law and politics, whose name is given to an electorate, a society, a suburb, barristers’ chambers and a university. 

He was at the centre of Queensland politics for 20 years and the colony’s attorney general between 1874 and 1878. Reynolds writes that Griffith took no action to protect Aboriginal rights to remain on their traditional lands. 

“In other words he actively condoned widespread defiance of the law … If the conditions of the leases had been enforced, the blood-soaked history of pastoral expansion may have been quite different.” 

[snip]

“Hundreds of men, women and children were killed. Like his colonial contemporaries Forrest and Downer, Griffith knew exactly what was happening out there in the vast hinterland. He did little to stop the killing. 

“How then should history remember him? Will his high reputation survive the rigours of truth-telling? Perhaps more to the point, should it survive?” 

Griffith was a liberal opposed to the Pacific Island labour trade and he wanted to be rid of the paramilitary force that protected pastoralists and prospectors moving into frontier areas. 

Something to discuss at the next chinwag of the eponymous society.