Jemimah Roberts (Macquarie Law School) has posted The Implied Freedom and the First Amendment: Revisiting Use of United States Free Speech Doctrine After Babet, Ravbar, and Farmer on SSRN. Here is the abstract:
In 2025, the High Court handed down three significant decisions on the implied freedom of political communication: Babet v Commonwealth; Palmer v Commonwealth, Ravbar v Commonwealth, and Farmer v Minister for Home Affairs. Taken together, these cases signal a potential methodological shift away from structured proportionality towards a ‘calibrated scrutiny’ approach, under which the intensity of review is calibrated to the degree of risk a burden poses to representative and responsible government. This article responds to these recent developments by making two contributions. First, it argues that the emerging approach makes this a timely moment to revisit the role of United States free speech doctrine as a comparative resource. It contends that deeper and more positive engagement is both warranted and increasingly feasible, and identifies appropriate parameters for such use. Second, the article advances a novel doctrinal refinement within implied freedom reasoning by arguing that, in cases appropriately characterised as imposing time, place, or manner restrictions, the ‘adequacy’ of alternative channels of communication should be adopted more explicitly and applied consistently as a lens of analysis, sharpening the inquiry where a burden arises from regulating the conditions of political communication rather than its content.
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