Precedents

On June 13th 1971, the New York Times began publishing a series of articles revealing that the US government had systematically lied its way into the Vietnam War, that it believed that war to be unwinnable, and that contrary to the claims of successive administrations had no plans to end it. The government's reaction was immediate: the articles "threatened national security" and were based on information leaked from the Department of Defence. They obtained an injunction to prevent further publication and force the return of the source documents to the Pentagon. On June 18th, the Washington Post began publishing extracts from the same source, so the government sought an injunction against them as well. The court was less cooperative this time, and the case quickly found its way to the Supreme Court. The Supremes issued a 6-3 decision that the injunctions were an unconstitutional prior restraint, and that the government had not met the high burden of proof required to justify them - but by that stage a Senator had read most of the relevant documents into the Senate record, rendering the entire point moot.

Salient's case is hardly the Pentagon Papers, but the same issue is at stake: whether a party can use the law to prevent publication of leaked or damaging information. In this case the parties are a university and a student newspaper, and the information will merely embarass - but the precedent set here will apply to more important cases. If Victoria University's injunction is upheld, then it will apply to real media organisations attempting to publish more important information - and conceivably even to a Pentagon Papers style case of a newspaper attempting to publish information which would bring down a government.

Unfortunately, unlike the US, we do not have strong constitutional protections for freedom of speech in New Zealand. While freedom of expression is affirmed by S 14 of the New Zealand Bill of Rights Act 1990, application in the courts has been decidedly mixed. While there are precedents setting a high barrier against prior restraint because of its inhibitory effects on freedom of expression, there are also cases where those precedents have been blatantly ignored, and injunctions granted and upheld on purely speculative grounds (for example, Tuakau College's 1996 injunction against the Holmes programme preventing it from broadcasting a piece on a suicide at the school, before the piece had even been made, and on grounds that amounted to nothing more than moral panic). It's unclear which way the law will go for Salient - but their lack of legal resources will not help them, and that could be a disaster for us all.

It's times like this I wish New Zealand had an equivalent of the ACLU, to step in and defend cases like this...