Campbell on Slater, Lorde and media’s (lack of) boundaries

If Cameron Slater was a beached whale, the volunteers likely to show up to help him off the beach would almost certainly be limited to close friends and immediate family, judging by the fallout from his latest escapade. On such occasions, it is obligatory for someone to trot out Voltaire’s non-quote about disagreeing with an opinion, but defending to the death one’s right to express it, but not this time...few people would be willing to take a bullet to protect Slater’s decision to be repeatedly obnoxious. For many New Zealanders the logic involved here would be pretty simple: if you don’t want to receive death threats, don’t cheer at a funeral. Chances are, some mourner may feel moved to wish the same six feet under fate on you.

In saying that, I’m not condoning death threats, which are indefensible - and not only when they’re a statement of serious intent, but even when they’re issued simply to intimidate. Death threats cannot be defended on free speech grounds and - though it may seem like a fine line - they do belong in a separate category from offensive remarks made at, or about, a funeral. In the US, the Supreme Court has interpreted the free speech part of the Constitution as expressly including the right to act and speak disrespectfully and demonstrate at funerals, even when the intention is to offend, and/or shows a reckless disregard for the sensibilities of mourners.

The relevant case here is Snyder vs. Phelps, better known as the Westboro Baptist Church case. The entire Supreme Court ruling is available here. Briefly - and I hope the parallels to the recent Slater incident are obvious - the US Supreme Court chose to defend on constitutional free speech grounds, the right of a tiny sect called Westboro Baptist Church (led by Reverend Fred Phelps) to picket the funeral of a soldier killed in Iraq. The sect’s message, the Supremes agreed by an 8-1 margin (against Judge Samuel Alito’s sole dissent) was a “contemptible" one – namely, that God had killed 20 year old Matthew Snyder because of America’s condoning of homosexuality, and because of the alleged sins of the Snyder family, which the sect listed on its website. These alleged sins included the soldier’s father Albert Snyder being a Catholic, and that he’d recently got a divorce. Therefore, the sect claimed that God had deliberately killed young Snyder, and so sect members turned up at the funeral with signs that included “God Hates Fags” and ”Thank God for Dead Soldiers.” No mention of ferals, but you get the general drift.

It would have been relatively straight forward if the Supreme Court had simply found in favour of repugnant speech as the price for having a free speech defence at all. Unfortunately, the Snyder case wasn’t quite like that. It differed from the famous case where preacher Jerry Falwell claimed that 9/11 was “God’s punishment for the secularization of America by pagans, abortionists, feminists, gays and lesbians.” Falwell was attacking America in general. The sect made it clear in the oral argument stage of the hearing that they had attacked the private individuals in the Snyder family in particular for the alleged sins mentioned above. Justice Alito, the lone dissenter on the bench, had plainly been concerned about this aspect, and its implications.

Here’s where the echoes of the Slater incident become apparent. By the logic of the Supreme Court ruling, the boundaries of family privacy simply do not extend to being able to express grief in a context free of politico-religious or commercial exploitation or hurtful satirical commentary. Chief Justice John Roberts who wrote the majority opinion, cited several allegedly mitigating factors. Such as: the Snyders were not the first funeral service the sect had similarly disrupted over the past 20 years. Nor was the funeral service itself disrupted – the sect kept themselves and their placards some “1,000 feet” away. On the day of the funeral, Albert Snyder saw only the tops of the placards on his way to the service, and realized the awful content of the demonstration only that night, after watching television news coverage. The mourners on the West Coast on the other hand, got Slater’s message loud and clear.

IMO, Roberts seemed to be trying to create wiggle room for the court, in both the language and the content of the majority opinion. Is the apparent sincerity of the Westboro Baptist Church beliefs (as reflected in their 20 year campaign of bigotry) relevant and should it give them greater funeral disruption rights over any fledgling, new entrant bigots? (Ditto for Slater. Should the fact that he has acted like a loose cannon before, be supposed to mitigate the hurt inflicted? Hardly.) Roberts seemed to have convinced himself that the Snyders' funeral service was not really disrupted and that any rights they had to privacy were not really violated all that much, because they had discovered the full import of the hateful speech only later that same day, and not during the service itself. That seems like a very circumscribed notion of grief. In sum, the distinctions offered by Roberts seemed pretty specious.

OK, back to Slater. My point is that even the US Constitution -with its supposedly stronger protections for free speech enshrined within a written Constitution that has far more sweeping powers than our own humble Bill of Rights - has had a lot of trouble in striking a balance when it comes to the equivalents of Slater’s ‘ferals’ blogpost. Its also worth noting that even the US Constitution does not offer an absolute protection to free speech. As Roberts conceded in his ruling:

That said, “Even protected speech is not equally permissible in all places and at all times.” Frisby v. Schultz, 487 U. S. 474, 479. Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach—it is “subject to reasonable time, place, or manner restrictions.”

In Roberts’ view though, the time, place and manner were just reasonable enough (this time) to pass muster. The Snyder family begged to differ. In their lower court suit for damages, the Snyders had sued Westboro on three grounds: of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. One can easily see how and why the free speech issues might come down on the sect’s side. Free speech is free speech. Yet here - and with the Snyders and the grieving family on the Coast - there was a clearly competing right. These were not public figures, nor was the occasion a public event. Slater cannot offer any public good defence for any intentional and/or reckless inflicting of emotional distress on private individuals.

Interestingly, what the US Supreme Court ruling has meant is that families do not have a right to mourn a family member without the occasion being arbitrarily hijacked for political purposes, or any other purpose. In the wake of Snyder vs. Phelps, private funerals would now seem to be virtually fair game as political or religious or commercial platforms, or for commentary and caricature, at the very time when one might have thought their privacy right to grieve comprised – at the very least – a valid competing right.

Finally, this is where Lorde comes in. So far, Cameron Slater has escaped any official consequences for his actions, and has even had the nerve to deck himself out as a victim. An academic called Ursula Cheer at Canterbury University has cited Slater’s comments as being reason for the government to dust off the Law Commission’s recommendations about the regulation of the blogosphere, an idea that had originally been triggered by Slater’s prior abuse of confidentiality rulings by the New Zealand courts. That looks like overkill. Surely, we shouldn’t pass laws and regulations that impact on the Net behaviour of everyone, simply because of the actions of one solitary individual? I know, I know. New Zealand did pass tax legislation based around the needs of one solitary film, namely Lord of The Rings. That doesn’t mean we should be so arbitrary thing again. And again.

If we can all learn to live with Cameron Slater on the blogosphere, it means that Lorde is going to have to learn to live with the mainstream New Zealand media. Apparently, the media behaved badly and jostled members of her family at Auckland airport, as Lorde arrived back in NZ in the wake of her Grammy award victories. I’m assuming her complaints were genuine, and not simply an anti-Establishment posture. Down with the media? Surely, the local media deserved to be cut a bit of slack by her. The media had just spent days praising her Grammy awards to the skies, with nary a mention of the joke status that the Grammys have had for decades, as noted here and here.Sample:

Predicting Grammy winners is like moderates voting in Republican primaries: You’re just trying to pick the least terrible outcome, and old white guys are always the favorites...[So] if you are someone who actively follows music — or just someone who likes instruments other than guitars — the awards can be extremely frustrating. (Ask Kanye.) And the eligibility window is always so off. (This year it's October 1, 2012 through September 30, 2013, which means: no Beyoncé.) The point here is that expectations should be low...

Only at the clueless Grammys would Mumford and Sons beat Frank Ocean or Macklemore and his chum beat out Kendrick Lamar - a decision so ridiculous that Macklemore feel obliged to publicly apologise to Lamar. Meaning: Lorde got a free ride from the media here. Not saying she didn’t deserve it, but hey, the NZ media had been unfailingly nice to her about winning two of what is widely derided (elsewhere) as awards that rate way behind the Oscars, the Emmys and the Tonys in the credibility stakes. Yet when they jostle the whanau in the act of trying to take yet another adoring picture of her, she bites their heads off. Teenagers!

But I digress. As with Slater, I think it should come down to common sense. In future, if Lorde and her family and friends want to hold their private reunions - say, when she comes back from overseas after winning awards celebrated in a multi-page spreads and prime time TV bulletins - maybe they should do it in private. To repeat: if celebrities want to protect their private space, maybe they shouldn't expect to conduct private get-togethers in public.

Such after all, is the price of celebrity. A few years ago, the author J.K. Rowling and her husband failed to block the publication of a long lens photo of their baby, taken while Rowling was out walking the pram on a public street. That’s because even celebrity parents cannot re-define a public street as a private setting, on behalf of their 18 month old child. Thankfully, Lorde doesn’t have to worry about that level of intrusion just yet. Maybe she should feel concerned though, that international law doesn’t speak with a clear and consistent voice, even when bad behaviour by the media tips right over into celebrity stalking. Sure, proximity can be treated as relevant to the privacy issues involved with celebrity stalking, but the counter argument would be that individuals such as Lorde are now public figures - and if the Snyders and the Coasters and their relatives and friends (who are private individuals) do not qualify for much in the way of protection, she would be hard pressed to make a case for it. It might be useful (and pretty hair-raising) for Lorde to read where this line is currently being drawn in the States, because according to this media report, the issue cropped up during the oral argument stage of the Snyder/Phelps case:

Attorney Phelps [for the sect] argued that private individuals should not be treated differently than public figures, that picketing someone’s home was acceptable, as would be following and demonstrating against a wounded soldier who had been returned home. Justice Ginsburg interrupted, asking if a demonstration and exploiting a private family’s grief would be acceptable even if alternative venues were available? “Absolutely,” Phelps replied. Interrupting Ginsburg, Justice Alito posed a hypothetical question, asking if it would be acceptable to verbally accost a grandmother, a private figure, on a bus returning from visiting her Marine grandson’s grave? “It would depend,” Phelps hedged, “maybe she’s a public figure?” “No,” said Alito, “she’s a not in the public eye, and she’s a Quaker.” “It depends,” Phelps began again before Ginsburg interjected, “Isn’t this stalking?” “No,” said Phelps, “it only sounds like stalking.”

Well, it only sounds like stalking because it is stalking. And it brings with it the potential for riot and mayhem that funeral disrespect is liable to create at a time of intense private grief. If Slater gets death threats, those threats need to be condemned. Yet by the same token, was Slater’s ‘ferals’ blogpost all that dissimilar from shouting “Fire!” in a crowded theatre? And what should be the remedy? Let’s assume the state did choose to take overt action to give meaningful legal protection to the grieving. If it did - and in protecting mourners from the likes of Fred Phelps and Cameron Slater, should the state also be consistent, and seek to deny the right of a protestor to hold up a placard saying “Child Molester" at or near the funeral of someone like Michael Jackson? One would surely hope not. How on earth can the state (and the courts) determine who is - and isn’t - the deservingly grief-stricken?

Even in the context of a funeral, it seems clear that any attempt at absolute principles is a mirage. All that one can hope for is that a reasonable civility will prevail. In the current superheated socio-political environment that the blogosphere reflects and occasionally inflames - a call for civility may not seem to nearly enough. But that’s only until you consider the alternatives. Invariably, they’re worse. The only thing worse than the likes of Cameron Slater would be the attempt to selectively regulate them.

Footnote: I’m not kidding about that last bit. If you want a prime example of how badly well meaning principles could be bent, look no further than yesterday’s media furore over whether the search and seizure powers of school authorities go far enough. Don’t know about you, but the rationale for breaking the existing rules offered by Secondary Schools Principals Association president Tom Parsons struck me as completely bizarre and unacceptable:

[Parsons said] "When you seize a phone and trawl through it you may see stuff that is arguably private, but that's nonsense to then not do it, because the reason you're looking for the stuff is out of good intentions." He said principals and teachers did not use search and seizure powers unless there was a reason to suspect wrongdoing. "Surely the privacy factor is a small price to pay for the greater safety of all students." Parsons said there was no point getting "tied up in the detail" and principals needed to exercise their right to keep students safe regardless of what the guidelines said.

Yep, that’s how we teach the young about the rule of law, and the rights of the minority, and the proper respect for personal space and private property - by violating the existing guidelines on them at will because the existing rules don’t seem stringent enough and just get in the way of you doing what you want to do. And that’s supposed to be A-OK because you’ve got good intentions? And of course, no-one in power has ever violated personal liberties without good reason, have they? And the needs of the majority (which you determine) must always prevail, right? All up, a pretty good example of why you don’t give those in authority the unfettered power to regulate the privacy of others.

ENDS

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