In an article for Just Security at the New York University School of Law, Peter Bartlett and Dougal Hurley compare the rules governing print and broadcast news media (as distinct from social media) in the United States of America and Australia. Although laws and regulations often aim to strike a fair balance between upholding a right to communicate ideas and a right to make informed decisions based on fact, regulation and freedom of speech are uneasy bedfellows.

In the United States, any attempt to govern the information marketplace will inevitably come up against First Amendment protections and a relatively weak regulatory framework. Concerns over false information arising out of the coronavirus pandemic serve as a reminder that content-based speech regulation that survives the scrutiny of judicial review remains thin on the ground.

The Australian system of law and regulation has evolved without a personal right of free speech like the First Amendment but the High Court has recognised that an implied freedom of communication exists under the Australian Constitution in relation to political and government matters. The lack of personal free speech protection in Australia has generally allowed firmer constraints on speech and freedom of the press than in the United States, but the accuracy of print and broadcast reporting has not been heavily regulated. This model has largely endured due to concern over government interference or oversight. However, the impact of any regulatory encroachment on freedom of expression could be magnified in the absence of comparable constitutional safeguards.

The regulation of our media has always been an intensely political question on which reasonable minds may differ. The authors contend that a multifaceted approach that supports existing self and co-regulatory schemes, education and independent fact checking organisations is to be preferred over reforms that may have unintended consequences. Of course, we should avoid complacency on false information, especially on digital platforms. However, lawmakers must be mindful to ensure that intervention is reasonably adapted and does not unduly trespass on the more sensitive aspects of relations between the press and the State.