Monday, June 05, 2006

A step backwards for freedom of speech

Tomorrow we will see a remarkable step backwards for freedom of speech in this country. Tim Selwyn - an Auckland freelance writer - will go on trial in the Auckland District Court on sedition charges relating to flyers left at the scene of an axe attack on the Prime Minister's electorate office in 2004. This will be the first prosecution for sedition in this country for at least 75 years.

Selwyn is charged with "seditious conspiracy" and "making a seditious statement". Both charges revolve around the concept of a "seditious intention" - defined in New Zealand law as an intention to "bring into hatred or contempt, or to excite disaffection against" the Queen or the government, to "incite... or encourage violence, lawlessness, or disorder" or any offence that is "prejudicial to the public safety", to incite "hostility or ill will" between different classes or groups of people, or to incite the public to bring about constitutional change by unlawful means. Numerous legal commentators, including Sir Kenneth Keith and the great British constitutionalist Albert Venn Dicey, have noted that this definition is so broad as to criminalise virtually any criticism of the government. And historically, that is exactly how the law of sedition has been used in this country: as a tool of persecution for those whose political opinions were deemed "non-mainstream".

The Maori leaders Te Whiti and Tohu were detained - but never tried - on sedition charges following the sack of Parihaka. Later, the Maori prophet Rua Kenana was prosecuted for supposed disloyalty to Britain. Various Irish leaders were also prosecuted for speaking out against Britain's persecution of the Irish - including Bishop James Liston of Auckland, who was prosecuted in 1922 after criticising British atrocities during a St Patrick's Day speech. The Samoan independence leader Olaf Frederick Nelson was also prosecuted for daring to suggest that Samoans could run their own country. But the primary targets were members of the labour movement - and later the Labour Party. Future Labour leader Harry Holland was prosecuted and jailed for a speech he gave during the Great Strike of 1913 - as were unionists Edward Hunter and Tom Barker. Later, during WWI, future Prime Minister Peter Fraser, and future cabinet ministers Bob Semple, Tim Armstrong, and future Labour MP James Thorn were all jailed for speaking out against the government's policy of conscription. One - Paddy Webb - was even an MP at the time; he was jailed for speaking out on the issue during a local body election campaign in his electorate.

It is supremely ironic then that the political heirs of those persecuted and victimised under this law - the Labour Party - are now using it to persecute and victimise someone who has spoken out against them. For that is what Selwyn is being prosecuted for: speaking out. The actual act of attacking the electorate office with an axe has been dealt with under a charge of "conspiracy to commit criminal damage", to which Selwyn has already pleaded guilty. The sedition charges relate solely to his words, not his actions.

What of those words? Aren't they an incitement to violence? The best response to this comes from US Supreme Court Justice Oliver Wendell Holmes in his famous dissent in Gitlow v. People. Holmes pointed out the simple truth that

Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result.

In a free society which affirmed the right to freedom of speech, Holmes believed that only speech which attempted to induce immediate and concrete action (on the level of yelling "fire" in a crowded theatre) could be prosecuted. Anything which fell short of this - for example, urging the violent overthrow of government at some indefinite time in the future - was protected. Selwyn's flyers clearly fall into the latter category. Unfortunately, New Zealand law does not have any similar provision to that eventually established by Holmes, and he is facing up to two year's jail for them.

I'll leave the final words to former Prime Minister Sir Geoffry Palmer. In a 1989 paper discussing proposed reforms to the Crimes Act, Palmer pointed out that speech which poses a threat to public order can be prosecuted under existing laws relating to incitement, and that the only role of the law was to criminalise criticism of the government. This, he felt,

...should not be a crime in a democratic society committed to free speech. Libelling the government must be permitted in a free society.

I agree wholeheartedly. This law is an archaic holdover from feudalism which should have been relegated to the dustbin of history long ago. Its revival to prosecute those encouraging opposition to government policy is not just an outrage - it is a significant step backwards for freedom of speech in this country.

Update: Corrected spelling.


'In a 1989 paper discussing proposed reforms to the Crimes Act, Palmer pointed out that speech which poses a threat to public order can be prosecuted under existing laws relating to incitement'

Well that's a relief! Thank God for Sir Geoffrey!

Seriously, your 'defence' of Selwyn concedes the state's case before it has even begun. What we should say is 'so what if he was advocating violence?'

The only question worth considering in cases like this is: is the violence that is being advocated progressive or not?

I have advocated the use of violence in Iraq, in a leaflet which said I hoped the Kiwi troops sent there would be killed, and I got a bit of an informal warning from some goons in unform for my troubles. If the state bothered to bring a prosecution against me I wouldn't retreat to the pathetic defence you use for Selwyn: I'd say that the Iraqi people have a right to defend themselves against invaders, and I to defend that right is progressive.

So do you think Selwyn had a right to advocate violence or not?

Posted by maps : 6/05/2006 06:08:00 PM

I don't normally comment like this (and it's probably a surprise to people who know, but haven't read, me) but the past tense of plead is not also also plead but pleaded.

That out of the way, I'm with Palmer.

Posted by Graeme Edgeler : 6/05/2006 06:46:00 PM

Maps: Of course he did - but not because it was "progressive" or because I agree with his aims, but because such advocacy fell far short of the threshold that should apply in a free and democratic society.

I suspect that one of the reasons that Selwyn is being prosecuted for sedition rather than inciting any particular crime is because the police can't point to any crime that his leaflets would have "incited", and therefore couldn't make a case. Which tells you how bullshit this "crime" is.

As for your leaflets, they'd probably qualify as sedition - pretty much anything does. And in fact there was an Australian case in 1948 where a leading member of the Australian Communist Party, Gilbert Burns, was prosecuted for saying that, in the event of a war between the USSR and the west, "we would oppose that war. We would fight on the side of the Soviet Union". I'm dubious as to whether this should be an offence even in wartime (it being mere advocacy), let alone in peacetime - but this being Australia during an anti-red scare (Burns was baited into his statement by members of the Queensland Liberal Party, precisely so he could be prosecuted), he was of course convicted and jailed.

Posted by Idiot/Savant : 6/05/2006 06:58:00 PM

Graeme: Fixed.

Maps: As a further point, I guess one of the things I should have made clear (and which should be apparant from my comment) is that existing laws around incitement are rather stricter than the vague "incite... or encourage violence, lawlessness, or disorder" of sedition. The latter has been held to cover advocating that people ignore any existing law, for example - and there was even an attempt to prosecute someone for telling a group of protestors to sit down and peacefully block a street (this failed, fortunately).

Posted by Idiot/Savant : 6/05/2006 07:05:00 PM

There are no laws or principles or rules that can substitute for an analysis of the political context and content of the action or statement under discussion in matters like this. For that reason I certainly don't support the right of anyone to incite violence willy nilly. I'm no libertarian.

In the leaflet I mentioned I wrote something like 'If Kiwi troops are placed in a situation where they are helping kill Iraqis, then we hope these troops will be killed by Iraqis'.

Imagine if a member of a far right group wrote a leaflet scaremongering about a group of immigrants, and that leaflet went something like:
'If white community members are faced with the possibility of being killed by these people, then we hope the immigrants are the ones that are killed'.

Now, these statements are logically similar. You will never be able to formulate a law which makes one allowable whilst forbidding the other. Yet for left-wingers one statement is clearly progressive, or at least defensible, while the other is reactionary and indefensible. One should be allowed and one shouldn't.
Everything comes down to the political content of the statement and the context in which it is made.

There's no point, then, in trying to find reasonable members of the establishment like good old Sir Geoffrey and encouraging them to draft fair laws on matters like these. The left should reject any effort to repress people who make progressive statements inciting violence, and oppose people who make
reactionary calls to violence.

But the way to stop the latter group of people is not through laws and courtrooms, but through direct action on the street. A good example of such action was the beating that the fascists of the National Front received a couple of years back from organised anti-racists in Wellington.

In the lead up to this action both the fascists and the anti-fascists incited violence against the other side on the net and in their literature. But one side's incitement was progressive, whereas the other's was reactionary.

After the anti-fascists succeeded in smashing up the National Front rally the group went into decline, as members fearful of further beatings dropped out. There were no more reports of attacks by Front members
on Somalis in Wellington. Front leader Kyle Chapman decided he couldn't take the heat and left the organisation. Today the Front is much less of a threat.

I'm sure, though, that Sir Geoffrey was very distressed by the whole business...

Posted by maps : 6/05/2006 10:58:00 PM

Nice one maps. You do know that one of the reasons Hitler was so popular in Germany was that he stopped this kind of fighting in the street? Most people prefer it if nut-jobs of the left and right persuasions aren't actually beating each others brains out in public spaces we'd like to use - go and find a beer-hall or something for your brawls.

Posted by Psycho Milt : 6/06/2006 01:18:00 PM

You right-wingers get dreadfully wound up when someone questions the state's monopoly on violence, don't you?

Anybody who characterises the members of minority communities targeted by the NF who decided to organise and fight back as 'nutjobs' morally equivalent to the Front is perhaps not too far from the Front's politics themselves.

Posted by maps : 6/06/2006 01:25:00 PM

It's funny you should mention "...not too far from the Front's politics themselves" maps. It's just what I think when I read self-glorifying stuff about the beatings "anti-fascists" (ha!) have dealt out...

Posted by Psycho Milt : 6/06/2006 09:28:00 PM

apart from Psycho Milt's curious 'contribution' (I use the term loosely) to this discussion, its an interesting one. The flaw in MAPS analysis would seem to be that he can't actually want the govt of the day (whether socialist or capitalist) to define what is or is not progressive can he? The result would be obvious and Selwyn would still probably be up for sedition (I'm not sure of what he wrote, is it on the web anywhere?) but obviously it is anti-govt, and therefore to this govt reactionary and un-progressive. I don't see that any govt can do more than set down basic laws of acceptable behaviour and though certain just causes (such as the migrants against the NF) fall through the gaps, thats as it must be, so it still comes down to the validity of NZ's sedition law.

Posted by Anonymous : 6/08/2006 04:44:00 PM