Wednesday, August 12, 2009

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)