Law

Author and literary theorist Stanley Fish is, among other things, a professor of law specialising in constitutional law, media law, the First Amendment, and jurisprudence. It should come as no surprise, therefore, that over the course of his book Law at the Movies he shows a forensic knowledge of the judicial system in the United States. This is no casual checklist of films that feature lawyers as characters, but a dissection of how particular statutes and legal procedures are represented on screen. He conveys how, in the hands of gifted filmmakers, ‘dry as dust soil of legal doctrine flowers into something truly substantive and dramatically compelling’.

I began Mandi Gray’s book while waiting for the judgment to be handed down in Bruce Lehrmann’s defamation case against Network Ten and journalist Lisa Wilkinson. I had tuned into the live-streamed trial months earlier, along with 124,444 others, to hear Brittany Higgins being interrogated about her recollections of that fateful night in Parliament House. Gray’s argument – that some men were using defamation law to inflict further abuse and punishment on their victims, to cow them into silence, to chill public discussion of sexual violence – seemed apt indeed.

In 2023, a broken engagement might be followed by tears, the division of possessions, and a reliance on family and friends. It might even involve a few trips to the therapist. But up until the mid-to-late twentieth century, Australian men and women’s heartbreaks could also see them take a trip to court to charge their partner with breach of promise of marriage.

If the Australian government had banned books about Indonesia, it could hardly have been more successful in removing them from bookshops and library shelves than is presently the case. Even when such books appear in catalogues, retailers seem convinced that the public is not interested.

When Justice Anthony Besanko released his judgment on the Ben Roberts-Smith versus Fairfax defamation case on 1 June, there was a lot more riding on his decision than the reputation of the principal parties and who would be landed with the eye-watering legal bills. Had the verdict gone against Fairfax, its reporters, Nick McKenzie, Chris Masters, and, to a lesser extent, Dan Oakes, would have struggled to return to or resurrect their careers. Defeat would have had a chilling effect on genuinely probing investigative reporting. In the face of such a decision, media organisations and editors around the country would have thought long and hard about letting their journalists pursue well-connected and well-resourced public figures, let alone defend their findings in court. But there was more at stake than that. The ‘defamation trial of the century’ was also widely, if inaccurately, regarded as a war crimes trial by proxy. While Roberts-Smith was not on trial for any of the crimes McKenzie and Masters alleged that he had committed or facilitated, had Justice Besanko found that the reporters had defamed him it would have made the pursuit of war crimes charges against Roberts-Smith more unlikely, or more difficult. The sense of relief at Besanko’s judgment was near universal. It not only emboldened the nation’s investigative reporters and their editors but also opened the way for the full and free pursuit of those members of Australia’s Special Forces credibly identified by the Brereton Report (2020) as having committed war crimes in Afghanistan.

What exactly is popular culture? Does Big Brother really pose an inherent challenge to law? And what connection does the regulation of cyberpornography have with the film Pretty Woman? These are some of the questions I was left with after reading Romancing the Tomes, a cross-disciplinary collection of conference papers exploring the ‘uneasy relationship’ between law and popular culture from a feminist perspective.