Wednesday, October 05, 2005



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...

20 comments:

It is right to be vigilant about freedom of speech and information but one protection that we do have, as opposed to the US, is the fact that NZ is such a small country and we are all within about one or two degrees of separation from each other- and so, in actual fact, it is very difficult to suppress information.

Posted by Amanda : 10/05/2005 01:41:00 PM

I've sent keith an email offering $100 towards their legal fees. (keith@salient.org.nz) - Putting my money where your mouth is. :)

Posted by Anonymous : 10/05/2005 02:05:00 PM

Good news. Victory it seems. Salient is to be released in 10 minutes.

Watch your newswires people - and thanks for backing up my old mag (and principles, I may add).

Cheers,
Matt

Posted by Matt : 10/05/2005 03:30:00 PM

I also sent Keith a donation offer. Apparently he doesn't check his email very often... or the poor lad's worn out.

Posted by stephen : 10/05/2005 03:57:00 PM

Aaaand..... the University now can't 'find' the abducted copies of Salient. Rather lax security for a magazine they wanted to keep so tightly under wraps, don't you think?

Posted by Anonymous : 10/05/2005 04:21:00 PM

Can someone (with time on their hands) update Wikipedia's article on Salient?

It would be good to see Vic being shamed out for eternity :-)

And I'll try to find out when it will put out by Salient staff.

Posted by The Doorman : 10/05/2005 04:29:00 PM

Apparent the mags are now found. Careful application of the mainstream media may have help here. Might be worth watching the news and getting the morning's Dom Post

Posted by Lyndon : 10/05/2005 05:44:00 PM

While it might seem like a pretty clear cut case here, the requirement of "Freedom of Speech" does not necessarily to all forms of expression in all media - as that includes the freedom to spread disinformation. In an information age, this is becoming increasingly important. However the last thing we want is for any draconian, totalitarian measures stopping unwanted ideas from being explored, or the censorship process slowing down the speed with which we can communicate ideas.

In short, there needs to be a distinction drawn between the freedom of opinion and expression thereof, and the freedom to publish any kind of information in any medium whatsoever.

While these might seem indistinguishable, there is already clear precedent, for instance Section 123 of the Crimes Act 1961, where it describes the difference between opinion and libel - at least as it relates to Religious topics.

To excerpt the relevant point:

It is not an offence against this section to express in good faith and in decent language, or to attempt to establish by arguments used in good faith and conveyed in decent language, any opinion whatever on any religious subject.

That is, you have the freedom to say anything you like, so long as you convey it in good faith established by decent arguments.

I think that a well drafted law like this but extended for general communication could be effective in working against the current status quo, where anyone is free to print whatever disinformation they feel like on a whim without marking it appropriately for the communications medium as opinion. Blogs, for instance, could be completely off-limits to these measures, especially if they comply with trackback conventions or have unmoderated comments to allow anyone to provide alternate commentary on a discussion. As should unbroadcasted speech, satisfying to the letter "Freedom of Speech". However media that does not provide the right of reply, or with a long publishing cycle might have to "watch what they say".

That doesn't mean witholding information - it simply means not over-hyping information. Leaked internal information should still be allowed to be published, but over-reactionary commentary that does not explore the subject matter in good faith would effectively be spreading panic, which in effect is a form of disinformation.

Posted by Anonymous : 10/05/2005 06:11:00 PM

Postmodern Geek: Freedom of expression is precisely about "freedom to publish any kind of information in any medium whatsoever". In a marketplace if ideas, truth sees to itself. If it can see to itself, then it needs no protection under the law. And if it can't, then it simply doesn't deserve it. Limiting "disinformation" is inviting government to dictate truth to its own convenience, or those with lawyers to use it to silence criticism from those without. Neither is compatible with the exploration and communication of ideas you claim to value.

We have a standard for judging speech, and that standard is one of harm - to which truth is a defence. And that is as close as we should ever get to judging what is a lie and what is not, because otherwise we open ourselves to the medieval nightmare - or worse, the Orwellian one.

As for your "well-crafted" law, it is one of the canonical examples of a gross violation of freedom of speech which should be stricken from the statute books. In a free society, people are free to be rude, as well as polite, and they are free to use forceful and even vile, as well as "decent", language, if it helps them. And if the fancy takes them, they are free to wear a "Jesus blows goats" T-shirt, or stick an idol of the Virgin mary in a condom. Yes, it offends Christians. But there is no right not to be offended. If you think that there should be, I suggest you look at Singapore to see how such a right is utilised in practice.

Posted by Idiot/Savant : 10/05/2005 07:10:00 PM

I/S: "But there is no right not to be offended."
Thank you! Someone put this in the Bill of Rights!

Posted by Psycho Milt : 10/05/2005 09:10:00 PM

I don't care as long as I can get a good job to payback my loan. Anyway, It's gonna cost me much to fly to German to get a gratis education. I can't afford that, but I'm not sure if I can ask for more loan to go there and forget VIC. In conclusion, is a NZ free education such a dream?

Posted by Anonymous : 10/06/2005 01:26:00 AM

In a free society, people are free to be rude, as well as polite, and they are free to use forceful and even vile, as well as "decent", language, if it helps them.

Sure, and that's fair enough - but your freedom to swing your arm ends at my nose. If you purposefully lie to me in order to mislead, this is the communications equivalent of punching me on the nose. You acknowledge this when you talk about harm in communication - but isn't a deliberate mistruth placed in your head to make you want to buy a product or vote for a particular party harm?

The argument that all expression must be free takes for granted a certain maxim which is simply hoped for, but never talked about. That is, that the majority of people are successful at distinguishing between fact and opinion. But is this really the case?

This is really just putting the question up - is it possible to preserve freedom of expression and opinion while still stemming the flow of (particularly corporate and political marketing) disinformation?

Perhaps it is simply not possible - or maybe it is more a case that censorship is the wrong approach to tackling the root problem - but if there is a good solution there somewhere above and between Orwell and Dog eat Dog world we're in at the moment, then perhaps we should think about how we can move towards that solution.

Posted by Anonymous : 10/06/2005 11:19:00 AM

Postmodern Geek: Nobody places ideas in people's heads - people believe them. And if people believe things that are false, all I can say is that truth needs to get its act together. If it can't convince people, then it doesn't deserve to be called "truth".

Or, to put it another way, it's a marketplace of ideas, and the usual rule of caveat emptor applies.

As for your question, I addressed exactly those issues in a previous post on liberalism, "false consciousness" and deception (and a followup here). Yes, we're falliable, and can be deceived. But the answer to this is to provide people with better bullshit detectors - not to assume they are stupid and must therefore only be exposed to ideas approved as "truth".

Posted by Idiot/Savant : 10/06/2005 12:16:00 PM

Idiot: "But there is no right not to be offended."

I agree with you here. I'm happy to be offended by the Virgin in a condom... well not happy, but you get what I mean. But there are those who would put what I believe as hate speech.

How do we decide what level of offence is acceptable, and when it actually becomes harm? Hate speech laws are an erosion of free speech, but there are those in government who wish to further such legislation.

Would you protect my right to be a "bigot"?

Posted by Muerk : 10/06/2005 05:16:00 PM

Idiot: "But there is no right not to be offended."

I agree with you here. I'm happy to be offended by the Virgin in a condom... well not happy, but you get what I mean. But there are those who would put what I believe as hate speech.

How do we decide what level of offence is acceptable, and when it actually becomes harm? Hate speech laws are an erosion of free speech, but there are those in government who wish to further such legislation.

Would you protect my right to be a "bigot"?

Posted by Anonymous : 10/06/2005 05:41:00 PM

Muerk: I'd defy anyone to come up with a hate speech law that wouldn't apply to the way leftists talk about nazis. Can't speak for I/S, but I'd certainly defend your right to be a bigot.

Posted by Psycho Milt : 10/06/2005 10:13:00 PM

Muerk: As should be clear from this post, I do not support hate speech laws. The answer to distasteful speech is more speech, not less.

Posted by Idiot/Savant : 10/06/2005 10:39:00 PM

It seems odd for a left-wing blog to be talking about how the free market will solve everything...

Posted by Commie Mutant Traitor : 10/07/2005 11:49:00 AM

CMT: well, the "marketplace of ideas" is an exceedingly good metaphor. If you don't like it, think of it as a process of vicious Darwinian natural selection, instead: the strongest ideas will succeed and spread, and the weakest ones will fail. While I don't think that should apply at all to people, having it apply to ideas and arguments seems perfectly acceptable.

Posted by Idiot/Savant : 10/07/2005 12:05:00 PM

Oh, it's a good metaphore, but an unconstrained free marketplace of ideas has the same problems as an economic free market. Some people/classes have far more power to promote their ideas than others. In Darwinian terms, truth has very little to do with strength.

Posted by Commie Mutant Traitor : 10/08/2005 02:16:00 PM