Muslim activists in Australia lose free speech case
The pair had appealed in the High Court the unanimous ruling of three judges of the New South Wales state Court of Appeal in December 2011.
"Whilst at one level the letters are critical of the involvement of the Australian military in Afghanistan, they also refer to the deceased soldiers in a denigrating and derogatory fashion,'' their judgment said.
Prof. Anne Twomey, a Sydney University constitutional lawyer, said the High Court's tied decision offered little legal precedent on the extent that offensive speech can be prohibited in Australia.
She said the issues could be tried again in a different case. Two of the seven judges on the High Court will have changed before the next such case is heard.
"It's rather unpredictable'' how the court would rule on a similar case, Twomey said. "The area of offensive speech has always been difficult.''
Only six judges heard the case because the seventh, Justice William Gummow, intended to retire in October last year before the trial was likely to be completely heard.
One of the judges who would have upheld the appeal on free speech grounds, Justice John Dyson Haydon, retires in March.
It is a crime under Australian federal law to use a postal service to communicate a message that "reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.''