Social Media, Free Speech and Religious Freedom in Australia

Abstract

Social media forms part of the fabric of 21st century global life. A form of speech, social media allows communication with a potentially vast audience. Unsurprisingly, many people use it to disseminate religious views or ideas. While such proselytising (as part of a broad freedom of religion or belief (FoRB)) typically causes little concern, some instances can result in significant harm to the dignity of others. In 2018-20, for instance, Israel Folau, an Australian rugby player, claiming to be motivated by Christian beliefs, posted homophobic and deeply offensive Instagram comments, ultimately resulting in dismissal for violating the code of conduct contained in an employment contract. Putting the potential for discrimination — for Folau’s vilification of gay persons or for Rugby Australia’s dismissal for expressing religious belief — to one side, this essay considers the protections that might exist if the state attempted to regulate religious speech of this kind. The essay contains three very brief parts. The first considers the range of methods found in Australian law — both federal (national, or Commonwealth) and state — that might be used to regulate religiously motivated speech. The second part considers whether such laws might infringe upon constitutionally protected speech and, if so, whether those laws might nonetheless be justifiable. In our Conclusion, we reflect upon whether religiously motivated speech may find protection in Australian law notwithstanding state attempts at general regulation of social media speech. While our focus is Australia, our conclusions bear relevance to other jurisdictions where speech is constitutionally protected.