On Friday, the Federal Court found the Melbourne Symphony Orchestra (MSO) did not act unlawfully by cancelling a scheduled performance by concert pianist Jayson Gillham, after he made statements that Israel had committed war crimes by targeting journalists.Gillham argued the MSO took prohibited “adverse action” against him due to his political beliefs. The court dismissed the case on both factual and legal grounds.The judge stated the accuracy or importance of Gillham’s comments was not relevant to his decision. He said the decision involved technical workplace laws, rather than broad issues concerning artistic expression or freedom of speech.How this decision will affect freedom of speech for other musicians and artists in Australia is not clear.What happened?In August 2024, Gillham was performing in an MSO recital in Melbourne. Introducing a piece of music, he made statements that Israel had committed war crimes by targeting journalists in Gaza.In response, MSO cancelled a performance by Gillham scheduled four days later and apologised by email to audience members. MSO later sought to require Gillham not to make a statement from the stage as a condition of reinstating the performance. Gillham refused the condition and MSO cancelled the concert on the grounds of “safety concerns”.We have seen similar cases in Australia in recent years. In 2025, journalist Antoinette Lattouf succeeded against the Australian Broadcasting Corporation in a case involving public comments by Lattouf regarding the actions of Israel in Gaza. Legal experts called the Lattouf decision a “landmark” ruling in relation to freedom of political opinion for employees.But the Gillham ruling has gone in the other direction.What the court foundGillham’s case was different to Lattouf in two ways. First, Gillham was an independent contractor rather than an employee. This did not mean he had no claim but it made the proceeding more complex. Second, Gillham claimed he had a workplace right under the Victorian Equal Opportunity Act not to be treated unfavourably because of his political belief.The court rejected Gillham’s case because it found that the equal opportunity act was not a “workplace law”, as it did not regulate the relationship between employer and employee.Further, the court stated classical musicians cannot make statements on sensitive political or social issues from the stage without approval from the host. They stated this was a custom in the profession and an implied term in Gillham’s contract. The court found the MSO had a policy of not expressing support for either side in the Israel-Gaza conflict.According to the court, MSO cancelled the concert and apologised to the audience to address the anticipated negative impact on MSO’s business and reputation. The judge found the “substantial and operative” reason for MSO’s actions was not Gillham’s political opinions but rather its legitimate commercial interests.Key for Australian artists going forward, the Gillham decision seems to narrow the precedent set in Lattouf.Implications of the decisionIn Lattouf, the court found that the ABC terminated the journalist’s employment because of her expression of political opinion. However, in Gillham, the court said concern about an artist expressing a controversial political belief from the MSO stage can be separated from the content of that belief. This indicates courts may give significant weight to the commercial and business interests of concert organisers, rather than prioritising protection of political opinion or expression. Journalists and artists traditionally have some freedom in their expression, although this is not recognised in the laws relied on by Gillham.The court’s decision in Gillham leaves the legal situation of musicians and artists unclear. On one hand, the decision concerns only Gillham and the MSO. However, the trial was closely watched due to the topics involved and the freedom traditionally enjoyed by artists.Under this judgement, it seems classical musicians in Australia contracted to orchestras or other organisations must now seek and be given approval before making statements on stage regarding “sensitive or political issues”. It is unclear what topics fall in this category. For example, an Acknowledgement of Country is considered by some people as sensitive or political. It is unclear whether comments on environment issues or the gender pay gap justify cancellation of an artistic performances or further adverse actions against an artist, musician or performer.It is also unclear how this ruling applies to performers, artists and musicians who are employees rather than contractors. Ultimately, the discrepancy between the court’s findings on the Lattouf and Gillham cases means we must await future decisions to clarify the balance between the freedom of artists, performers and musicians to make statements on public stages, and protecting organisers’ commercial interests.This ruling will impact how comfortable artists feel about sharing their political opinions on stage, or working as contractors for arts organisations who don’t explicitly share their opinions.Bill Swannie does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.