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Justice Michael Lee found the journalist, along with her then employer Network Ten, didn’t establish qualified privilege defence

Lisa Wilkinson has challenged Justice Michael Lee’s finding that she acted unreasonably in broadcasting an allegation of rape, according to her submissions on a notice of contention filed in Bruce Lehrmann’s upcoming appeal.

Lehrmann lost his sprawling $10m defamation case last April when the former Liberal party staffer was found on the balance of probabilities to have raped Brittany Higgins in Parliament House in 2019. In October Lehrmann was allowed to appeal.

Lee upheld the defence of truth, but found Wilkinson and Network Ten failed to establish the qualified privilege defence.

That section 30 defence, at the time of broadcast in 2021, was that they acted reasonably and in the public interest, in airing the rape claims in an interview with Higgins on The Project.

It provided a defence to journalists who published defamatory matter in the public interest if it was reasonable.

That means that journalists can get something wrong, defame a person, damage their reputation irreparably, and still not be liable in defamation.

In submissions to the appeal, Wilkinson now asserts the public interest defence “should have been found to have been established” in the original judgment.

In documents filed in the federal court, Wilkinson’s barrister, Sue Chrysanthou SC, argued Lee erred in his finding that her client’s conduct in broadcasting an allegation of rape was improper and unjustifiable.

Lee found that the public interest defence would not have been established if the truth defence had failed, because her conduct in “conveying the defamatory imputations of rape fell short of the standard of reasonableness”.

Wilkinson says she “had a reasonable basis to believe the truth of the very serious rape allegation” after reviewing the material Higgins gave her and after speaking to the former staffer on several occasions.

Her “belief was reasonably based on her assessment of Ms Higgins and on objective factual material that was, to her knowledge verified, and she did believe in the truth of the rape allegation at the time of publication”.

Wilkinson was “reassured” by the publication of an article by news.com.au journalist Samantha Maiden on the Monday morning several hours before the broadcast of The Project that evening.

“It was reasonable for her to rely on her experienced producer [Angus] Llewellyn” to carry out the task of ensuring a right of reply from Lehrmann was obtained and the requisite fact-checking was undertaken.

In his judgment Lee wrote “even though [Ten and Wilkinson] have legally justified their imputation of rape, this does not mean their conduct was justified in any broader or colloquial sense”.

Although Lehrmann was not named during the broadcast, Lee said he was identifiable.

Wilkinson’s arguments in her submissions include that she was not responsible for the final product which went to air and she was subject to directions by Ten. Wilkinson said she understood that The Project’s producers “undertook extensive factual checking, review and decision making before the broadcast”.

“It was plainly reasonable for Wilkinson to rely on [Ten’s editorial] processes, conducted by a producer that she (and the rest of the team) considered to be experienced, highly capable and professional,” the submission said. “His Honour erred in failing to have regard to this body of evidence in making findings about Wilkinson’s reliance on Mr Llewellyn in this regard.”

In relation to the legal advice received by Ten before broadcast, Wilkinson says she “is not and has never been a lawyer, nor does she have any legal training”.

“She gave uncontested evidence of these matters, and further of her reliance on what she considered (at the time of Broadcast) to be the expert, experienced and conservative advice of the Network 10 lawyers,” the submission said.

The submission defends Wilkinson’s role in gaining a right of reply from Lehrmann.

Lee was critical of Wilkinson for her acceptance speech when she won a Logie for the Project interview which he said conveyed the message that Higgins was credible and to be believed, and therefore, by necessary implication, that her allegation of rape was true.

Wilkinson said should the appeal be allowed, her Logies speech does not aggravate damages.

“The primary judge erred in finding that an employee journalist, who sought and received firm legal advice (more than once) about the contents of a televised speech she was directed to give on behalf of her employer was improper and unjustifiable such as to warrant an award of aggravated damages,” the submission said.

In her 1976 essay, “Why I Write,” Joan Didion described herself as the kind of writer “whose most absorbed and passionate hours are spent arranging words on pieces of paper.” Had she been an ordered and credentialed being she “would never have become a writer.” Had she been “blessed with even limited access” to her own mind she would have had no reason to write. Didion’s devotion to writing stemmed entirely from a desire to find out what she was thinking, what she was observing, what she was seeing, what she wanted, what she feared, and what it all meant.

Writing about the iconic artist in “We Tell Ourselves Stories: Joan Didion and the American Dream Machine,” Alissa Wilkinson, film critic at The New York Times, argues that any writer with Didion’s approach “is not just figuring things out for themselves. They’re offering themselves as a guide, someone to follow.” Blending biographical, literary, film, and cultural criticism, Wilkinson presents the late celebrity essayist-novelist-screenwriter as a kind of American dream interpreter and demystifier. Though not a Didion biography, Wilkinson’s book nonetheless follows the contours of her lifecycle, shaping a story about the enabling social and political fictions that she once explored and that the Hollywood TV and movie dream machinery continues to produce.

Early in the book, Wilkinson argues that “the way [Didion] understood the world, marked and inflected by the movies, is a useful lens to explain the reality we live in now. Everything she wrote about, from the feeling of observing reality from the outside — what else are we doing when we watch actors, many times larger than life, blemish-free and beautiful on the flatness of the screen — to the notion that politics and Hollywood are more similar than different, speaks to the great trajectory of her work.”

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Related: ‘Nobody wrote sentences like her’: A Didion scholar talks the enduring magic of the late writer’s prose

In the forward to Didion’s book of travel diaries, “South and West” (2017), Nathaniel Rich argues that the entries recording her 1970 sojourn in New Orleans and travel across the Deep South, capture insights that “eerily” anticipate the “Hollywoodized political scene” we are currently living through. Wilkinson unfolds Rich’s compact claim and fashions a narrative about California, John Wayne, the Hollywood studio system, Didion’s novels, her film reviews, and her personal and political nonfiction, especially the canonical essay, “The White Album,” whose opening sentence has inspired Wilkinson’s title.

Employing a fragmented, episodic structure, toggling between and sometimes blending reportorial and personal points of view, the titular essay (first published in 1979 in New West, the Pacific Coast sibling magazine to New York Magazine) in Didion’s collection “The White Album” recalls Southern California in the late 1960s as a reflection of the national state of discombobulation and a parallel for her own psychological breakdown.

Wilkinson argues that the essay’s famous opening line — “We tell ourselves stories in order to live” — is not “the inspirational phrase it’s sometimes taken to be.” Rather it’s Didion’s “diagnosis of humanity’s most reflexive survival tactic. It is Didion’s key to making sense of the world. Though the line is often treated as an aphorism, Didion means it more as an opening parry, the rising curtain on her best attempt to make sense of her muddled memories.”

Didion first noticed the culture’s rent seams in the early 1960s when she and her husband, John Gregory Dunne, quit their magazine jobs in New York City and moved to Didion’s home state, California, to write screenplays for the movie industry. In Los Angeles, they co-wrote film treatments and “doctored” other scripts, and even shared a magazine column, to financially underwrite their novel writing.

Related: In the South and in California, unmistakably Didion

Perhaps in all her writing guises, Didion’s male lead and cultural barometer is John Wayne, both the character and the man. Wayne encapsulated “what postwar white America imagined itself to be: brave, ever on the move, unafraid to punch back when necessary. A beacon of goodness on a choppy horizon,” Wilkinson writes. However, in her 1965 Saturday Evening Post profile, “John Wayne: A Love Song,” confronted with the man’s cancer diagnosis, Didion “betrays a sense of unease” about the maintenance of his symbolic vitality. Among the essays collected in her first nonfiction book, “Slouching Towards Bethlehem” (1968), the Wayne piece signals Didion’s first notation of the culture’s disintegration.

Though Wilkinson’s insightful and generous study offers a way of reading the overlapping and contradictory desires that inform Didion’s writing in her differing modes and across her various career stages, there is a critical absence in “We Tell Ourselves Stories” that gave me some unease of my own.

With the exception of a riff on the differences between Didion’s film criticism and Pauline Kael’s, Wilkinson fails to put Didion in conversation with her literary contemporaries or agemates. This worrisome choice portrays Didion as though she were alone in critiquing American social mythologies on screen and in politics. Without contextualizing Didion’s work within a wide-ranging critical history, Wilkinson, perhaps inadvertently, reifies the Didion myth, as writer and celebrity. Given the political and cultural conditions of the US nation-state in 2025, we ought to eschew those narratives that present white artists existing in an “unpeopled” cultural landscape.

Wilkinson’s suggests that we recognize Didion as an American “everywoman” “who became a celebrity because she told things as she saw them, but never quite settled on one interpretation, on ‘fixed ideas.’” Could Didion have been the only writer to see things as they were? Likely not. Such claims erase, for example, Audre Lorde’s powerful cultural criticism and the vision of the West that N. Scott Momaday advances in his prizewinning novel, “House Made of Dawn” (1968), by two of Didion’s contemporaries.

Related: James Baldwin in Donald Trump's America

Wilkinson could’ve placed Didion, who titled an early essay “Notes of a Native Daughter,” in a fruitful exchange with James Baldwin. Debating William F. Buckley (Didion’s editor at The National Review) on the American dream and Black American citizenship at the University of Cambridge in 1965, Baldwin argued that Hollywood Westerns express national genocidal desires: “It comes as a great shock around the age of five or six or seven, to discover that Gary Cooper killing off the Indians, when you were rooting for Gary Cooper, that the Indians were you. It comes as a great shock to discover the country . . . has not, in its whole system of reality, evolved any place for you [the racialized other].”

For his 1971 memoir, “No Name in the Street,” Baldwin developed a manic but precise narrative form (mirroring both America’s murderous rejection of the 60s civil rights movement and his own broken psychological state following that decade) that seems a foreshadowing of Didion’s architectural choices in “The White Album.” While white Americans remain secure in the euphoria of their mythologies, Baldwin explains, “black people have not been so lucky: a black man who sees the world the way John Wayne, for example, sees it would not be an eccentric patriot, but a raving maniac.” And “The Devil Finds Work” (1975), Baldwin’s book-length critical essay on movies, documents the nation’s failure to disentangle itself from dangerous cinematic mythologies about masculinity, whiteness, and American imperial power, seems like a perfect sparring partner for Didion’s screenwriting.

Wilkinson could’ve tested her analyses against the trenchant cultural criticism in Elaine Castillo’s essay collection, “How to Read Now” (2022). In her daring, fiery essay, “Main Character Syndrome,” Castillo rejects what she calls the “Didion psalms” — those lines of Didion’s that gain sacred literary status, see Wilkinson’s title — deflates the Didion mythos, reclaims California, and forwards an liberated, Indigenous (and Filipino-American) West. “

“We Tell Ourselves Stories” details how American political culture has become enmeshed with “reality” television, the new mythology, from televised national political conventions, to C-SPAN to The Apprentice. According to Wilkinson, “there’s no better guide through this era than Didion.”

We’ve entered an era that demands we write, publish, and tell rich, capacious, desegregated, comparative cultural histories and literary studies for general audiences in order to reject those political myths that purposely or inadvertently promote visions of white-only American experience and history. Our lives now depend on creating a mature, inclusive, and visionary national culture and politics that refuses Hollywood game show dreams. “We Tell Ourselves Stories” will be useful in preparing for that cultural remaking.

WE TELL OURSELVES STORIES: Joan Didion and the American Dream Machine

By Alissa Wilkinson

Liveright, 272 pages, $29.99

Walton Muyumba teaches literature at Indiana University-Bloomington. He is the author of “The Shadow and the Act: Black Intellectual Practice, Jazz Improvisation, and Philosophical Pragmatism.”