Tuesday, January 12, 2010

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.