A victory for freedom of speech

On Anzac Day in 2007, Valerie Morse burned a New Zealand flag at a dawn service in Wellington. She was arrested, convicted of offensive behaviour, and fined $500. Today, that conviction was overturned by the Supreme Court. The reason? As in Brooker v Police, public order legislation must primarily be concerned with public order.

Reading the judgement [PDF], its clear that the judges disagree on the specifics. Chief Justice Elias, following Brooker, simply regards it as an exercise in statutory interpretation. The wording and legislative history of that part of the Summary Offences Act makes it clear that it is concerned with public order, and the word "offensive" in s4(1)(a) should not be interpreted in its traditional sense of "giving offence", but as "aggressive". The crime therefore becomes one not of outraging public sensibility (which in practice means the sensibilities of some plod who regards you as criminal scum who needs to be in jail for raising your voice), but of behaving in an aggressive and threatening manner which has a propensity to dissuade others from their ordinary use of public space. This makes all BORA problems disappear in a puff of logic - public order clearly being a justified limitation - along with the convictions. Other judges cling to varying degrees of the old "behaviour which wounds feelings and causes offence" formulation, but all agree that this must be analysed in light of its propensity to disrupt public order in the same way as suggested above. The net result: the conviction is overturned, and its not worth the bother of revisiting.

As with Brooker, this seriously raises the bar on the policing on public protests. The police can't arrest you just because you're saying something they don't want to hear, don't like, or find "offensive". A protest has to seriously interfere with other people, or run a real risk of starting a riot, before they can do so. And even then, they must show appropriate deference to freedom of speech before intervening. The question is whether the police will get the message and take it to heart, or whether they will continue to unlawfully interfere with the public's right to protest.

An Orwellian ruling on free speech

Just before the holidays, the Court of Appeal released its decision in R v. Morse [PDF], upholding Valerie Morse's conviction for offensive behaviour for burning a flag at an Anzac Day dawn service in 2007. Because of the holidays, the Ministry of Justice didn't get around to putting it online until today, and so I've only just had a chance to read it.

The decision was by majority, and the prevailing decision, from Justice Arnold, is simply appalling. Following the usual caselaw, Arnold conducts the usual balancing exercise, weighing offensiveness against the right to freedom of expression affirmed in the BORA. Arnold upholds the decision of the lower courts that burning the flag was offensive as it was capable of "wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it" (the District Court judge goes further and calls it "desecration"). As for freedom of speech, Arnold discounts that by noting that other (less effective) means of protest were available, that burning the flag was aimed at drawing attention to the protestors message, and that by telling them something they didn't want to hear, this interfered with the freedom of speech of the audience. Of course, as noted in Brooker,

the purpose of protest is to make someone listen to something they do not want to hear.

If not overturned by the Supreme Court, Justice Arnold's Orwellian ruling effectively makes all but the most meek and mild protests unlawful, and the BORA's affirmation of freedom of speech a dead letter.

(Justice Arnold bases his reasoning on a US case about harassment at abortion clinics and another about protests at funerals. The former is about "unwanted approach", the later private events. In both cases there is a strong presumption of privacy, and it is difficult to see how either applies to a public gathering in a public place).

Arnold was backed in his decision by Justice Young, who basically sticks his fingers in his ears and goes "la la la whether something is offensive is a matter of fact not law and thus unreviewable la la la", and then adds a "but I think it was offensive anyway" (the initial argument is dismissed by Justice Glazebrook. Yes, its a finding of fact. But whether that finding was reasonable and whether the proper test was used are both matters for review by higher courts).

In dissent, Justice Glazebrook argues that Arnold's Orwellian argument is unsound, and furthermore that in the light of Brooker, no "reasonable person" with a proper understanding of freedom of speech could conclude that Morse's behaviour was offensive.

As noted above, I am hoping that this decision will be appealed. It applies restrictions suitable for a deeply private place or event to a public place, and that is simply incorrect. But more generally, it seems that we are still under the tyranny of the "reasonable person", in that whether something is offensive or not is decided by whether an imaginary "reasonable person" would be strongly offended by it. But as pointed out by Kenneth Keith way back in 1968, this is a test which inherently supports the status quo:

is not the stated test - "a course of action calculated to cause resentment or revulsion in right-thinking persons" [as it was put then - I/S] - both very subjective and majoritarian? Is there not a real danger that the preference of "right-thinking persons" is more likely to be for the status quo, that all strong action by a minority group challenging accepted opinions is likely to cause resentment in such persons' minds?

Keith pointed out that when originally passed, New Zealand's law against offensive behaviour was very tightly targeted at public order, applying only to those who used

threatening abusive or insulting words or behaviour in any public street thoroughfare or place with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned.

(Emphasis added)

The latter part has since been repealed, shifting the law from being about preventing brawls and riots - a legitimate reason for restricting freedom of speech - to (as is clear from this case) protecting people from messages and criticism they do not want to hear. This should not stand in a democratic society; the law needs to be repealed.

Flag-burning before the courts again

On Anzac Day in 2007, Valerie Morse burned a New Zealand flag at a dawn service in Wellington. She was arrested, convicted of offensive behaviour, and fined $500. Yesterday, her case went before the Court of Appeal as she sought to have the conviction overturned on BORA grounds.

This is a vital case for freedom of expression in New Zealand. It pits the Bill of Rights and its affirmation of freedom of expression directly against the desire of the right to maintain an official version of history and protect it from challenge and dissent. And it highlights the fact that freedom of expression exists precisely to protect the rights of a minority against the desire of the majority to silence them. If it does not do that, then it is worthless.

In the wake of Brooker v Police [PDF; summary here], the odds ought to be good. That case dramatically raised the bar around public order policing, applying the BORA fully and requiring that there be some actual risk of public disorder, rather than mere annoyance to the powerful. Unfortunately, the Court of Appeal don't seem to have got the memo, talking about how the right to shock was dependent on the occasion, and that it was offensive to "besmirch" a symbol under which soldiers fought. I am hoping that they were merely playing devil's advocate to draw out the point, but if not, then we may find once again that our freedom is held hostage to the traditionalist whims of dead old men.

(More at Media Law Journal)

Dropped

According to the Manawatu SubStandard, the Police have dropped charges of "dishonouring the flag" against Tame Iti. Given last year's judgement on flag-burning, they were almost guaranteed to lose, and its good to see them acknowledge the fact. Charges of recklessly discharging a firearm have also been dropped, presumably on the basis that an outcry from right-wing politicians is insufficient for a conviction. Instead, the Police are focusing on the charges where they may actually have a case: unlawful possession of a firearm, and possession without a license. Which again, is fair enough. In this country, we demand that people who want to own guns jump through a few hoops first (primarily to do with not being a dick and not wanting to use them on other people); if Iti hasn't bothered, then he deserves to be charged and convicted.

The Police haven't learned

According to Three News tonight, Tame Iti has in fact been charged with desecrating the New Zealand flag.

Given what happened last time the Police laid such charges, I'd have expected them to be a lot more cautious about laying such charges. While the High Court didn't overturn the law (courts in New Zealand can't), it did "read it down" so as to be compatible with the affirmation of freedom of expression in the Bill of Rights Act; now instead of simply destroying the flag in public, it must be done with the intention to "vilify" it. Exactly what that means is as-yet undefined, but I suspect that if burning the flag is protected, then shooting one full of holes almost certainly is.

But while the police are almost certainly wasting public money bringing this charge, they are doing us one favour: reminding us that this outdated law still exists, and that our supposedly liberal Labour government has done nothing to change it. Like the law against sedition, the law against burning the flag is outdated, a throwback to eighteenth-century concepts of lese majeste. And as I've argued previously, such laws grossly violate the freedom of expression and have no place in a modern, liberal democracy like New Zealand.

"Nation-building" is a significant pillar of the current government - recognising (and thereby helping to define) who we are as modern kiwis. Recognising our longstanding commitment to freedom should be a part of this. Laws banning flag-burning, sedition, and blasphemous libel aren't really who we are as a nation. The government should acknowledge this, and repeal them.

Flag-burning, and legislative interpretation

Over at NZPundit, Ackbar lambasts the High Court for continuing "that dangerous trend of using the NZ Bill of Rights Act 1990 to essentially strike down other legislation". All I can say is that section 6 of the New Zealand Bill of Rights Act 1990 - the one that requires that, whereever possible, other legislation be interpreted so as to be consistent with the rights and freedoms guaranteed by that Act - wasn't made up by judges, or put there for no reason. Parliament wanted other laws to be subjected to such review and interpretation, while at the same time explicitly denying the courts the power to invalidate laws. The result is a balance between Parliamentary sovereignty and judicial interpretation; the courts have a lot of power to gut an act by "reading down" its provisions ("a time-honoured technique of construction for upholding individual rights or freedoms"), but Parliament has the final say.

If Parliament doesn't like the decision, it should legislate to clarify its intent with regard to flag-burning. If it means to override freedom of expression, then it can bloody well go on the record and say so.

I think the flag burning prosecution also raises fundamental questions about why we have laws. Laws should really be restricted to

1. Protecting people's life and wellbeing.
2. Protecting people's property.
3. Protecting people who through their age or whatever other reason don't have the ability to make informed decisions for themselves.
4. Protecting the poor and disadvantaged from exploitation.

When it comes down to it, this man is going to be tried for a crime that has no victim...lots of people may be offended by his gesture but no one is actually being hurt in any way. On the other hand, we all lose if we tolerate this attack on freedom of expression. Even more worrying is the fact that the police tried to get a court order preventing the man from associating with one of his fellow protesters...what exactly were they trying to do here? I am happy to be offended occasionally if that is the trade off for living in a free country. This law has to be scrapped...it is the thin end of the jackboot.