What is Political Communication? The Rationale and Scope of the Implied Freedom of Political Communication

Abstract

The aim of this article is to identify what counts as ‘political communication’ for the purposes of the implied constitutional freedom of political communication. This is done for two reasons. The first is to delimit the scope of the implied freedom. The second is to clarify whether ‘racial vilification is ‘political communication’, which is the initial step that must be taken in order to assess the constitutionality or otherwise of current Australian racial vilification laws. It is, however, necessary and desirable to establish a sound theoretical basis for the implied freedom before these questions can be properly considered. To this end, it is argued that a minimalist model of judicially-protected popular sovereignty underpins the implied freedom and is the rationale that must guide its interpretation and application. The analysis undertaken demonstrates that a generous zone of ‘political communication’ must attract constitutional protection and that racial vilification will in certain circumstances amount to ‘political communication’.