Is liking something on Facebook 'protected political speech'? It depends

The second part of the test allows governments to regulate political speech provided it is . Attempts to completely prohibit political speech outright would fail.

The concept of 'political' covers a variety of issues, but it does not cover all 'public affairs'.

In Lange's case,

The High Court has not finished its exploration of how and where the implied freedom of .

Not all communication of public affairs, or matters in the 'public interest', will be protected. Discussion of government policies on welfare benefits, foreign affairs or climate change science could readily be political discussion.

Equally, critique of the performance of parliamentarians, the local council or the police force can be protected speech if the commentary or critique is reasonable and not made dishonestly or with malice.

It's increasingly apparent that social media use muddies the line between work life and home life.

It used to be, the courts, that 'it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees'. There usually had to be some relevant connection between the employee's misconduct and the employment relationship.

However, the context for these principles has shifted dramatically over the past two decades.

Old employment law decisions found social media activity to be an essentially private exercise, have noted that more recent decisions find employers' rights of control .

Public servants are uniquely restricted when it comes to political speech.

They are banned from standing for election by and there are that they need to be cautious in expressing, or being seen to express, political opinion.

The is that the Australian Public Service (APS) is 'apolitical'.

This raises a tension between competing values: the government has a legitimate interest in maintaining an impartial workforce, but public servants must have private views and be allowed to express their political opinions.

Using the High Court's two-stage test, it is probably a proportionate limitation for the APSC Code to specify that political expression be curtailed in an appropriate manner.

Other limits that are too strict, unreasonable or disproportionate could be struck down by the Court. Restrictions on and have been struck out on these grounds.

Still, the law remains largely unclear for public servants who wish to express political views without fear of reprisal.

The case of Bernard Gaynor, who was kicked out of the Army Reserve for his anti-homosexual comments on Facebook, could provide some much-needed clarification on these issues.

In 2015, Gaynor before a single Federal Court Justice that his termination infringed the freedom of political communication implied in the constitution.

The Chief of the Defence Force appealed that decision, claiming that freedom of political speech principles did not overrule regulations that allow an officer to be dismissed if his service is not in the interest of the Defence Force.

Earlier this year, the Federal Court agreed with the Defence Force's arguments and found that the termination of Gaynor's commission was not a breach of the Lange principles.

that 'implied freedom does not involve, nor does it recognise or confer, any personal rights on individuals'. Rather it is a freedom from government action or laws that constrain political expression.

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The correct approach, the Federal Court justices said, was to consider whether the authorising regulation itself was invalid because it disproportionately burdened the implied freedom.

In Gaynor's case, the regulation that governed dismissals was 'suitable, necessary, and adequate in balance with respect to any burden it imposes' on political communication, so Gaynor's termination was found to be valid.

Gaynor , and the High Court will have to assess whether his case merits reconsideration of the Full Federal Court's ruling.

Freedom to discuss political matters is one of the few constitutional guarantees we have. Given growing questions over political speech on social media platforms, we will be looking to the High Court to clear up the scope of this protection.