If this is "victory", what would defeat look like?

When the Free Speech Coalition was formed, they promised to stand up for freedom of expression (even that of Nazis). Now, they're dropping their urgent case against Auckland Council:

The Free Speech Coalition has withdrawn its request for urgent orders and a hearing on Auckland Mayor Phil Goff's decision to ban two right-wing Canadians from council venues, it says.

The so-called Free Speech Coalition crowd-funded tens of thousands of dollars to launch the court action, which was in response to Canadians Lauren Southern and Stefan Molyneux being prevented from using the Bruce Mason Centre for an upcoming speaking event.

In a press release, the coalition said it was withdrawing the action because it had achieved "victory".

The coalition said its main purpose for next Monday's hearing had gone because the council had conceded that mayor Phil Goff did not make the decision and that it was in fact made by Regional Facilities Auckland.

Except that that's not actually "victory". "Victory" would be a ruling from the court saying that the Council's decision was unlawful and that it can not use "health and safety" and a heckler's veto as a pretext to discriminate on political grounds in its venue decisions. Instead, they didn't even try arguing that, because in fact they support discrimination, at least when it comes to gay people. But then, its difficult to escape the impression that for many of them this was never about free speech at all, but about finding some way to attack their ideological enemy, Phil Goff. And now they can't sue him, they've simply lost interest. As for the actual principle at stake, well, that's been pushed back into the never-never, and they'll probably lose interest in that too. After all, its not as if the likes of Stephen Franks, Don Brash, David Farrar and Jordan Williams have ever been consistent supporters of freedom of expression...

I don't like Nazis, but tolerating them is the cost of a free and democratic society, the cost of the right of all of us to speak out and try and change things. And that right has been compromised. If you're happy with that, you might want to think about the precedent it sets: that a threat by people to protest against an event justifies its suppression. To point out the obvious, Nazis can also protest, and you are supporting their right to shut down progressive speech. And that doesn't seem like either a liberal or progressive position to hold.

A curious absence

The Free Speech Coalition has filed its suit against Phil Goff and the Auckland Council over their cancellation of a Nazi event, seeking to have the decision overturned. But reading the statement of claim, there's an odd omission: while they cite a variety of administrative law reasons and breach of sections 14 - 17 (freedom of expression, religion, assembly and association) of the Bill of Rights Act as reasons to overturn the decision, for some reason they don't include their strongest case: breach of the right to freedom from discrimination on the basis of political opinion. Its alluded to in passing when suggesting that Goff unlawfully directed the decision, but not otherwise mentioned. I'm not sure whether this is because they felt it would be difficult to prove, or because several of the Coalition's backers (e.g. Stephen Franks) are ideologically opposed to anti-discrimination legislation, but given that they're throwing the kitchen sink at it elsewhere, its a curious absence.

They've requested an urgent hearing and interim orders allowing the event to proceed, though whether they get it is another question. Still, hopefully we'll have a ruling and some clarification on local authority powers and freedom of speech soon.

Doing the right thing for the wrong reasons

A "free speech coalition" is planning a judicial review of Auckland mayor Phil Goff's decision to ban a pair of visiting Nazis from speaking in a council venue. A judicial review is welcome: I think Goff has behaved illegally, and should be forced to obey the law. At the least, it will clarify the law on freedom of speech in New Zealand in a useful way. At the same time, this "free speech coalition" looks a little odd:

It was being supported by former Labour Party minister Dr Michael Bassett, former National Party and ACT leader Dr Don Brash and business leader and Property Institute chief executive Ashley Church.

Also in favour was Auckland University senior lecturer Dr David Cumin, Canterbury University academic Melissa Derby, lawyer Stephen Franks, AUT professor Paul Moon, broadcaster Lindsay Perigo, writer Rachel Poulain, political commentator Chris Trotter and Taxpayers' Union executive director Jordan Williams.

If you were wanting to run a principled free speech campaign, then simply as a matter of PR, it might be a good idea not to have so many outright racists in it. Or people who have been outright hostile to free speech in the past. And be led by someone who hasn't called for critics of the government to have their arts funding cut. And OTOH, at least this time they're doing the right thing, if almost certainly for the wrong reasons.

Oh dear

For the past few weeks, Wellington Central candidate Stephen Franks has been complaining about people vandalising his signs. But it seems he's been engaging in a little vandalism himself:

National Party candidate Stephen Franks’ campaign team has been systematically tearing down political posters put up by his opponents – despite Franks recently describing people defacing his election hoardings as “political thugs who don’t like free speech or opinions different from their own”.

The group Both Eyes Open – which has been distributing posters, banners and stickers around the country reminding the public of the National Party’s record – discovered that its posters were being removed every night throughout central Wellington. “Our members went out last night and this morning and discovered it was Stephen Franks’ campaign people tearing them down,” spokesperson Fergus Wheeler said. Photos of these people match photos of the campaign people who have been out holding banners and leafletting with Stephen Franks around the city.

This isn't just a few overenthusiastic activists; Vote With Both Eyes Open apparently spoke to Franks and he "confirmed that his crew had been removing posters". In other words, the only person caught organising and authorising a systematic campaign of vandalism to suppress electoral speech is... Stephen Franks! I guess that makes him a hypocrite as well as a bigot.

Another vampire from the crypt

National has selected former ACT MP Stephen Franks as its candidate for Wellington Central. Franks was notable for the particularly noxious and intellectually dishonest stand he took against the Civil Union Act, which included a fairly vile (and fortunately failed) attempt to gut the Human Rights Act and allow employers to sniff into people's sex lives, and for supporting Judith Collins' attempt to deny abortion access to those who need it most. Then again, the National Party shared most of these positions, so he'll fit right in.

No doubt Franks will try and present himself as a "liberal" during the election campaign. He's not - he's just a tawdry panty-sniffing moral authoritarian who thinks everyone else's sex life is his business. The only "freedom" he is interested in is the freedom of the rich to victimise the rest of us. And that is a "freedom" we very much need to control if we are to live our lives in peace.

Franks on judicial recalls

In an opinion-piece in the Herald yesterday, Stephen Franks attempted to exploit current tensions between Parliament and the judiciary to argue in favour of judicial recalls - letting the public vote out judges. There are two problems with this. The first is that our judges are not "activist"; Franks' chief example - the court of Appeal decision in Ngati Apa v Attorney-General is entirely in accordance with earlier precedent from both New Zealand courts (e.g. R. v Symonds) and the Privy Council. It was the decision in In Re: Ninety Mile Beach which was out of step with New Zealand law, not Ngati Apa. Likewise, no matter how embarassing the government finds the decisions in the Ahmed Zaoui case, they are consistent with earlier rulings. The only way these cases can be judged as "activist" is if you dislike the outcome and don't care what the law says.

But the bigger problem is what this would do to judicial independence. Judges are supposed to impartially interpret the law without fear or favour. But judicial recalls would allow any group or (wealthy) individual who is unhappy with a decision to threaten their position. Judges would therefore be at risk of being intimidated into ruling in certain ways, regardless of what the law actually says. And preventing that is exactly why we introduced life-tenure in the first place...

Rather than promoting an impartial and independent judiciary, Franks' proposals would promote one that was beholden to public opinion and the powerful. And that is something we should all be highly suspicious of.

Discarding natural justice

Pandering to the "hang 'em high" brigade has reached a new low, with Stephen Franks committing an unwitting act of self-parody by calling the government's proposed law on prisoner compensation "wussy". But Don Brash's reaction is worse. In the 70's, he took a lead role in organising funding for Amnesty International in New Zealand. Now he's suggesting that people be denied a right of reply in legal proceedings against them:

Dr Brash is also concerned by a clause that will allow some of our worst rapists and murderers to see, and respond to, any claim by their victims on court-ordered compensation for alleged 'mistreatment'.

"Not only will victims have to revisit some of their worst nightmares by jumping through legal hoops to get their case for compensation heard, their applications will be forwarded to the offender for a response.

"In other words, the man who brutally raped and attacked a woman in her own home will be given access to the victim's personal thoughts with a right to reply.

The problem here is a little thing called "natural justice", affirmed in our Bill of Rights Act and regarded by judges as the basis of our legal system. Part of this is the doctrine of audi alteram partem - literally, "hearing the other side". In order for our adversarial legal system to work, both sides must be able to effectively put their case. This means that hearings must be notified, relevant material must be disclosed, and the opposing party given a chance to respond to it. If this is not followed, the system simply fails to work; rather than the stronger argument winning, victory goes to whoever the deck is stacked in favour of.

This principle of hearing the other side is arguably what lies at the heart of the Ahmed Zaoui case. Here we have a man whose fate will be decided by secret evidence which he is forbidden to hear, and which therefore he will have no chance to effectively rebut. Don Brash has quite rightly voiced his objection to the unfairness of this procedure, but seems quite happy to apply similar conditions to criminals facing claims for compensation from their victims. But then, hasn't he already more than shown his willingness to ignore consistency (and simple human decency) for political advantage?