Why aren&#39;t the laws banning Nazi symbols in Australia unconstitutional? Recently, in Australia, a number of state governments have passed laws banning the display of Nazi symbols, and in the last few weeks, the federal government has been talking about passing a law about doing so as well. However, shouldn't these laws violate the implied right to political speech of the Australian constitution? If someone wanted to collect the signatures needed to found the Australian Nazi Party and run for parliament, shouldn't they have the right to do so, and to display the symbols of the party they intend to found as part of that effort? Shouldn't their supporters be able to display the symbols of their support for said party? Is it possible that these laws are unconstitutional, and simply haven't been struck down by the courts yet?
An Australian Constitutional Analysis These laws are not unconstitutional in Australia because Australia's constitution does not expressly protect the freedom of speech or political expression, and because its implied protections are weak and are not individual rights. The Australian Constitution is a document that sets forth the relative powers of the federal and state governments in Australia, and the organizational structure of the federal parliament, the cabinet, and the judiciary. But, unlike many national constitutions, the Australian Constitution is not an instrument protecting individual human and civil rights, such as the freedom of expression, except to provide a road map over whether certain kinds of legislation are a federal or state responsibility. Any protection of individual rights in Australia has a source different from the Australian Constitution. In Australia, most protections for individual rights arise under the common law and legislation. According to the Australian Attorney-General: The Australian Government is committed to protecting and promoting traditional rights and freedoms, including freedom of speech, opinion, religion, association and movement. These rights and freedoms are protected by the common law principle that legislation should not infringe fundamental rights and freedoms unless the legislation expresses a clear intention to do so and the infringement is reasonable. The Australian common law provides particularly strong protections for freedom of speech related to public affairs and political matters. The government believes these rights and freedoms underpin Australia’s democracy and should not be taken for granted, and has taken some key steps to ensure that these rights and freedoms are protected and promoted. But, basically, Australia, like the U.K., has a tradition of parliamentary sovereignty, in which a clearly expressed intent of legislation is not subject to judicial review on a substantive basis. As noted in the source cited in the question: It's not uncommon to hear people in Australia talk about their 'right to freedom of speech'. However, many people are surprised to learn that the Australian Constitution contains no such right. It goes on to explain that: As its name suggests, the implied freedom is not expressly contained in the Constitution.It is an implication drawn from the constitutional 'text and structure'. It originates from the sections of the Constitution that require that the Commonwealth Parliament be 'directly chosen' by the people, and that the people will change the Constitution by vote. The High Court regularly emphasises that the implied freedom is not a personal right, but operates as a restriction on legislative and executive power.This means that the Commonwealth and State governments cannot make laws or take action that would breach the implied freedom. The implied freedom is not absolute ­– it exists only to the extent necessary to protect the system of government reflected in the constitutional text. In practical terms, then, this means that a law can interfere with communication about government or politics without breaching the implied freedom, if the law does so for a legitimate aim, and is generally proportionate to that aim. . . . Under the current case law, three questions must be answered when deciding whether a law infringes the implied freedom: Does the law effectively burden the freedom in its terms, operation or its practical effect (the burden question)? If so, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government (the legitimate end question)? If the answer to the second question is 'yes', is the law reasonably appropriate and adapted to advance that legitimate object (the reasonably appropriate and adapted question)? This question involves a proportionality test to determine whether the law is justified as suitable, necessary and adequate in its balance. If the first question is answered 'yes' and the second or third question is answered 'no', the law will be invalid. Essentially, this weak protection of political freedom under the implied freedom of political expression is legitimate if the state governments in question determine that fascism is inconsistent with a Western style political democracy and must be suppressed, and if the laws employed to suppress fascism are not too draconian. This is done in the context of a strong tradition of deference to political decision-making by state and federal parliaments. Put another way, so long as the law doesn't make Australia basically a less democratic political system that is depriving people of a meaningful ability to elect members of parliament at the state and federal level, it probably doesn't go too far given the justifications for the implied right. The scales are balanced at the institutional level in terms of whether democracy in Australia is impaired, rather than as an individual right of particular Nazis to express their views. A Human Rights Treaty Analysis Also, Australia, like the U.K., and many European countries, entrusts the protection of human rights primarily to international treaties which are superior to domestic legislation and are entrenched by the limitations in the treaties themselves upon leaving the treaties, as noted here: Australia is a party to the seven core international human rights treaties: the International Covenant on Civil and Political Rights (ICCPR) the International Covenant on Economic, Social and Cultural Rights (ICESCR) the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) the Convention on the Rights of the Child (CRC) the Convention on the Rights of Persons with Disabilities (CRPD). It is against these treaties that human rights scrutiny processes under the Human Rights (Parliamentary Scrutiny) Act 2011 are undertaken. Australia also has periodic treaty body reporting obligations under these treaties. Australia is an active participant in the Universal Periodic Review process which provides an in-depth analysis of Australia’s compliance with our international human rights obligations. Australia is also a party to: the Optional Protocol to the International Covenant on Civil and Political Rights establishing an individual communication mechanism the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women establishing an individual communication mechanism the Optional Protocol to the Convention on the Rights of Persons with Disabilities establishing an individual communication mechanism - the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. From a U.S.-centric view, the way that Australia protects human rights is similar to how the U.S. regulates itself with regard to preventing war crimes. In the Australian context, the core issue with respect to the legislation discussed in the question is whether it abridges an obligation of Australia under the International Covenant on Civil and Political Rights (ICCPR). Primarily, Articles 19 and 20 of that treaty are implicated by this legislation. These articles state: Article 19 Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Article 20 Any propaganda for war shall be prohibited by law. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. In the treaty analysis, the argument would presumably be that section 3 of Article 19 is adequate to permit the law, because Nazism inherently disrespects the rights of others and present a threat to national security, public order, and public morals, particularly considered in light of Article 20, Section 2, as Nazi symbols can be considered incitements to discrimination, hostility, and violence. I'm not personally familiar with precisely how these rights are implemented under Australian law, nor am I personally familiar with the case law interpreting these Articles of the ICCPR. Application To Hypotheticals Is it possible that these laws are unconstitutional, and simply haven't been struck down by the courts yet? Yes. Indeed, I have no idea who would have standing to raise the issue, or by what procedural route this would be done. I could imagine, for example, that an individual prosecuted for using such symbols might not have standing to context a prosecution under the laws on these grounds, while the leader of a proposed political party with a petition for recognition pending might be able to make these legal arguments. However, shouldn't these laws violate the implied right to political speech of the Australian constitution? As discussed above, under Australia's political freedom jurisprudence, both as an implied constitutional right and under the ICCPR, it isn't an open and shut case. Notably, similar prohibitions in Germany have not held to violate the express protections for freedom of political speech of Germany's Basic Law. If someone wanted to collect the signatures needed to found the Australian Nazi Party and run for parliament, shouldn't they have the right to do so, and to display the symbols of the party they intend to found as part of that effort? Shouldn't their supporters be able to display the symbols of their support for said party? Australian courts can address that question when it arises. Presently, there isn't a ground swell of support for such a party. And, there is no legal prohibition on establishing a political party with particular political views that the neo-Nazi party might ascribe to itself, nor is there as prohibition on such a party establishing any other new logos and symbols for itself that it devises. Essentially, what a holding that the particular symbols cannot be used is saying is that these symbols are now so deeply and indelibly identified with genocide, and racial discrimination, religious discrimination, and political violence that the government may rightly declare that adopting those widely understood meanings of those symbols is outside the &quot;Overton Window&quot; of acceptable political thought within Australian democracy. In the U.S. free speech jurisprudence, the analogous case would be U.S. laws that prohibit cross-burning in front of unwilling people's homes and businesses because such symbols have developed in the context of U.S. history and culture the character of a &quot;true threat&quot;. Australian states are basically saying that the symbols of the Nazi Germany regime amount to, in the current Australian context, a true threat to use violence against minorities in Australian society. If someone wants to espouse the non-genocidal, non-discriminatory policies of the Nazi Party in Germany, without advocating political violence, they are welcome to try to do so under a different name with symbols of their own that distance themselves from that violent, threatening, and anti-democratic Nazi German legacy. U.S. law protects people's right to use Nazi symbols. But, the U.S. has an express individual protection of freedom of speech without the same qualifications as Australia's implied constitutional right and treaty rights. And, one could imagine a rational U.S. Supreme Court resolving that narrow question differently without unraveling the whole of U.S. freedom of speech jurisprudence, just as it did in the case of cross-burning laws which are an uncontroversial part of modern U.S. constitutional free speech law. As another example, suppose that a Jewish Temple held the copyright and also trademark rights to those symbols in the context of political campaigns. A political party couldn't use those symbols then any more than they could use the McDonald's arches as its symbols without permission. But that isn't a major restriction on political freedom. The restriction on the use of the Nazi symbols isn't itself a restriction on particular political policies or ideas.
No. There are almost no constitutional lawyers (at least, that I have seen make pronunciations on the subject) who seem to think that this is a serious means of forcing a no deal Brexit; such an attempt would be obviously unconstitutional and would almost certainly be injuncted in court within hours of such an order being issued. Orders of council cannot stymie an Act of Parliament, this is a well established constitutional principle. See https://davidallengreen.com/2019/09/brexit-padfield-and-the-benn-act/
There is no federal prohibition against sexual discrimination in public accomodations. Colorado has an applicable state law, which covers "any place of business engaged in any sales to the public", where "It is a discriminatory practice and unlawful ...to refuse, withhold from, or deny to an individual or a group, because of ...sexual orientation...the full and equal enjoyment of the goods...". No provision exempts lemonade stands. Churches etc. are specifically exempted: "'Place of public accommodation' shall not include a church, synagogue, mosque, or other place that is principally used for religious purposes". Sex discrimination is allowed "if such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation", an argument that can't reasonably be made in the described case. It is also not obvious that running a lemonade stand is a business (the courts will not admit unsubstantiated Wiki assertions as evidence). It would be relevant to wonder what constitutes a "business" under Colorado law. E.g. is a business license required? In Colorado (US) law, it has not been definitively decided whether there can be a religious exception to the anti-discrimination law. Masterpiece Cakeshop was decided without answering that (the state showed clear religious intolerance in its handling of the case). We do not know how a similar case will be decided: Arlene's Flowers was handed back to the state court with the instruction "do it again" (with nothing more than a mention of Masterpiece Cakeshop). The court cannot establish certain beliefs and practices as "valid religions" (Establishment Clause); the proxy expression that is used is "deeply held belief", which includes atheism. The relationship of the issue to the First Amendment is uncertain.
Yes, such as this limitation on free speech. Initially, the limitation was "Clear and Present Danger" test (Schenk v. United States, 1919) which held that speech inciting lawless action was not protected speech and thus could be crimilized speech (i.e. Schenk publishing anti-draft fliers during World War I, which advocated draft dodging which at the time was a crime under the Espionage act of 1917). This was later over ruled to the "Bad Tendency" test which allowed for advocacy of criminal actions to be criminilized (Whitney v. United States, 1927. Whitney was accused of helping establish the American Communist Labor Party (ACLP), which held as a party platform the violent overthrow of the U.S. Government in favor of one advocated by the ACLP. This is standard to most Communist Parties at the time around the world. The difference between Schenk and Whitney was that Schenk actively called for a criminal action, where as Schenk was speaking of a future action following other party successes). This was overturned again by Brandenberg v. Ohio (1969) which introduced the "Imminent Lawless Action" test. This explicitly overturned Whitney in addition to other cases not mentioned such as Abrams v. United States (1915), Giltrow v. New York (1925), and Dennis v. United States (1951). It does not overrule Schenk, but it did cast doubt upon the decision made. In the case, KKK leader Brandenburg made a speech advocating for revenge against African Americans and Jews as well as expressing the belief that the United States government actively surpressed White Americans and needed to be opposed. He was charged as advocating the violent overthrow of the government. Imminent Lawless Action added the important componant that the violation must be advocacy of lawless action (revenge against racial minorities) must have a definite future date (like "tonight", "tomorrow", or specific time and date) and a vague future time will not count. And must show intent to break the law (Brandenburg did not specifically intend to break the law... he wanted it changed so it would not be legal before he took action). Additionaly, they found that the mere advocacy of resisting the government did not have any language componant that suggested violent resistance. Brandenburg, as discussed, overturned the reaffirmed B and put Schenk on some shaky ground as parts of Shenk were still relevant (Schenk first introduced that Free Speech was not without restrictions, but some of the case law was not relevent anymore, as Whitney used it as a basis in that decision, as did to a limited extent Dennis, which didn't work well with Whitney for other reasons. It should be pointed out that the Supreme Court does not typically take cases that wholly reaffirm past cases. Typically, their rulings are to clarify situations in a previous case that are not stated by the current extant rulings. For example, if the Supreme Court took a case that called Roe v. Wade into question, the case would more likely test whether Roe allows for a particular practice that isn't all that clear in Roe. It may affirm that Roe is still law, but the new case is not consistent with Roe, which will place a restriction on Roe, but not, figuratively, (pardon the pun) throw the baby out with the bath water.
Are political Flags (&quot;Trump 2024&quot;) prohibited under the HOA's no signs rule? Why or why not? Probably. The Florida statute seems to imply that a flag is a type of sign and usually a political sign, even in the form of a flag, is still considered to be a sign. The Florida statute, in any case, only excludes the U.S. flag, not any other kind of flag. The First Amendment doesn't apply to an HOA declaration, although one could argue that FS 718 is a content based restriction of speech by exempting only the U.S. flag on particular days, and not other kinds of flags on other days, but that doesn't make a remedy clear. Allowing political signs isn't an obvious remedy for a 1st Amendment violation in FS 718.
18 U.S. Code § 700 was held to be unconstitutional in Texas v. Johnson, 491 U.S. 397 (1989) and United States v. Eichman, 496 U.S. 310 (1990). If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. (Texas v Johnson) Mere flag burning is not illegal and is protected by the First Amendment. You may still be prosecuted for other crimes that happen while flag burning. For example, the flag may be somebody else's property. The Seattle appellees were also charged with causing willful injury to federal property in violation of 18 U.S.C. §§ 1361 and 1362. This charge remains pending before the District Court, and nothing in today's decision affects the constitutionality of this prosecution. (US v Eichman)
In this specific case and location, the precise location of the incident was explicitly made a public space via state law not too long before this actual event. They therefore most certainly have no right to privacy. What is interesting to me though is the other side of this, does someone have the right to record others in public spaces, or is it simply not illegal? For instance if I non-destructively and non-violently "jam" your camera by shooting a low-power IR beam at your lens, have I abridged a legal right of yours? I don't think it would be illegal to do this. I am not even positive its against the 1st Amendment. The 1st Amendment relates only to the dissemination of information, not the collection of it. The Constitution doesn't seem to compel the gov't to make information available, or even to make things/events/spaces observable. The various "sunshine" laws after-all had to be enacted, it wasn't part of an interpretation of the 1st Amendment. To put a finer point on it, is recording events in public spaces legal or merely lawful?
Yes The Browne-Fitzpatrick Privilege Case in 1955 resulted in the two being gaoled for 90 days for breaching the privilege of the Australian Parliament. They were, respectively, the owner and editor of the Bankstown Observer and the breach was an article in that paper that alleged that a then sitting MP, Charles Morgan, had been involved in immigration malfeasance as a lawyer prior to being elected. The men were grilled by the Privileges Committee of Parliament during which they were denied legal representation. The Committee determined that they had infringed privilege and the House, on the motion of the Prime Minister Robert Menzies, voted to gaol them. The High Court of Australia refused to hear an appeal as did the UK Privy Council (which was the highest court with Australian jurisdiction at the time). So, for things printed 300km from Parliament, Parliament decided that these men had broken Parliamentary rules and should be imprisoned. There is doubt, both then and now, that this was a political hatchet job. There is also no doubt that what was done was legal then, however, given that the High Court has since discovered an implied right to political communication in the Constitution, it may not be possible today.