Obscene And Offensive Not the Same
22 February 2005
Reformation Testimony Garnet Milne reformationtestimony.org.nz
An interesting dispute is ongoing between Marc Alexander (UF) and Stephen Franks (ACT) over the recent passing of The Films, Videos and Publications Classification Amendment Act. Its major focus was commendably to tighten up on censorship of pornographic materials with respect to the damage inflicted on children who might view pornography; and impose new and greater penalties against offenders.
However, Franks also perceived that there was a Trojan horse anti-hate-speech provision in this new legislation, which could be used by the film censor and others to limit our right to free speech. Is he right?
Stephen Franks pointed out that the new bill prohibited offensive speech, which could be taken to mean words used to convey legitimate criticism of sectors in society. After all trenchant criticism of prostitution or homosexuality would be offensive to the ears of those who participate in the immoral acts associated with these “lifestyles”.
Phil Goff apparently argued that this reference to offensive language was really meant to be understood as “swearing and foul language”. Franks was quick to query that if this was what was intended, then why was that fuller description not in the bill?
That it refers to foul language and swearing is patently absurd in a land where foul language is heard everywhere, including on state run media. Precisely what foul language does Mr Goff and others have in mind, because it seems to me that anything goes in all the media today. Can we really believe that a homosexual film censor who has been approving videos with swearing and foul language intended for young people to view is now going to ban sixteen year olds from viewing videos with the “f’ word? And can we really believe that this is what the bill intends? When a judge looks at this act he will have to consider the words written before him and the words do not include “swearing and foul language”.
In his press release, Marc Alexander also perpetuates this fictional idea that this offensive language provision actually refers to language which is “obscene and injurious [his emphasis]”. He tries to prove this assertion by arguing:
“The language of the legislation says so explicitly: ‘Publication may be age-restricted if it contains highly offensive language likely to cause serious harm.’”
I have been using the English language for a few years now, and I fail to see where the word or the concept “obscene” appears in this clause which he trumpets as proof that obscene language is intended. Perhaps it is in invisible ink and judges are given a special kind of 3D glasses which enable them to discern the word “obscene” in the bill. Another possibility is that it is a coded message like the “Bible code” where assassinations, world wars and the like are predicted. By feeding the new bill through a powerful computer, which can only be found under the judge’s bench, the word obscene can be discerned as long as you turn the decoded bill upside down.
Still a third possibility is that Mr Goff is publishing a new dictionary which will be known as New Zealand’s Gofficial dictionary, where it will be clearly stated that offensive language is now restricted to obscene and foul language. That the Gofficial dictionary has not been printed yet is not important, because the censor now can pursue people retrospectively once the judges have access to this new restricted definition of the word “offensive” (see section 3D).
The truth is that the word “offensive” is in the act and the words “obscene or foul language” are not. Franks is right. Had the committee really wanted to refer to obscene language, they could easily have done so. But Alexander further postures in his recent press release: “Additionally, another protection against the nonsense of the 'free speech' argument is that the term 'highly offensive language' cannot be defined by one segment of the public but by 'the public in general'”.
Really? Well this does clarify the intention of the bill for us does it not? Highly offensive language is language so defined by the public in general. What a wonderfully clear proof that minorities such as us Christians will not be deemed to commit an offence when we show a video detailing the evils of homosexuality to a church youth group.
How is the judge going to decide what the “public in general” think? Is he going to go to that godless lot who run the state-owned media and get them to conduct a survey (children don’t forget ask your parents[oops, caregiver] first)? Or perhaps the homosexual film censor will know through some mysterious mystical ability what the “public in general” consider to be offensive. Another possibility will be that in the inner bowels of a university, an expert on what the “public in general” think will be found, dusted off, and called as an expert witness.
Patently this is a reference to 51% morality. The public change their views over time and the perpetrators of this insidious hate-speech provision (in what otherwise is a worthwhile bill) may find that it comes back to bite them. Today a majority might say that calling homosexuals sodomites is offensive; but who knows what they might think in ten years time? There is no protection here for those showing a “Living Word”-type video from being punished under this new legislation.
Mr Alexander also claims: “The Act is not directed at ideas or beliefs, only a restriction on extreme language”. Here we have to scratch our heads some more and try hard to be tolerant, and if necessary have a strong cup of tea. Perhaps he means that it might be offensive if a video uses subtitles which appear on the screen using a particular type of font. Monotype Corsiva, for example, could be a little bit too exclusivist. This could offend those pluralists who prefer wingdings. Alternatively, the colour of the words might be seen to be racist and favouring white male Europeans. Another possibility might be that the use of a large point size could be seen to take the Mickey out of the obese.
Patently if a person offends with speech, he is offending because he is expressing ideas in what others might consider offensive language. He is expressing a belief (based on fact) if he says, for example, that homosexuals are disproportionately represented in the HIV/AIDs statistics in New Zealand. If a video warns against the destructiveness of sodomy with words that offend the sodomite, that video is expressing an idea or a belief. Does Alexander seriously believe that people use language that offends others while suspending their belief system, or ignoring the ideas which gave rise to the “offending” language? Is it really true that parliament itself is made up of zombie-type creatures who are really the living dead, and whose mouths just mumble out miscellaneous phrases unrelated to what is going on in their cerebral cortex? We may have hit upon the real reason the country is falling apart morally. It could be true that we are indeed governed by the living dead?
Alexander also states: “The Bill does not authorise restriction simply because adults find an expression offensive or because language might be insulting or offensive to a particular group in society”. This is nonsense. The bill does precisely this as long as the test of offensiveness to the “public in general” is passed.
Alexander adds: “This is a measure to protect children from exposure to otherwise unclassifiable extreme offensive language, not a measure to limit freedom of speech”. This is a dogmatic assertion by Alexander, because he does not prove his claim that the act will not limit freedom of speech. His statement is evidence, we might say, of a blind faith.
Mr Alexander might at first seem to be on firmer ground when he argues that (in 3b (b)ff ) when a person offends by causing another to feel demeaned, the legislation is not implying that critical or offensive words are being targeted. Instead, he argues that this feeling of being demeaned has to flow from some sexual or violent matter in the film, not just the words spoken. Alexander completely misses the point.
He conflates the specified material under 4A with these words: “The specified material that may be age-restricted is portrayals of: suicide, bodily mutilations and other self-harm, dangerous imitable behaviour (such as extremely reckless physical behaviour or consumption of intoxicants), or nude and other visual portrayals that are degrading, dehumanising or demeaning (examples include degrading physical depictions of amputees)”.
His statement “or nude and other visual portrayals that are degrading, dehumanising or demeaning (examples include degrading physical depictions of amputees)” implies that there has to be some obscene intention in the video or film, or bad taste depictions of amputees.
But his interpretation is not spelt out in the act. One of the tests in the act to apply to a video or film is to ask whether media “describes, depicts, expresses, or otherwise deals with[…]physical conduct of a degrading or dehumanising or demeaning nature” and then causes someone to be “greatly disturbed or shocked[or] encourage them to treat or regard themselves, others , or both, as degraded, dehumanised or demeaned” (3b(3)ff). This can be interpreted far more broadly than Alexander suggests.
Suppose a video showed a group of homosexuals acting in an offensive way as they often do in their hero parades and the like. If a Christian video or photograph showed such behaviour, those homosexuals who claim that they do not act in that way could argue that they therefore feel demeaned because all homosexuals are so labelled by the Christian material. A situation envisaged in the above italicised “material specified” can bring down a censor’s ruling and hence a prosecution for someone showing such a video to minors. In addition, just one of the reasons mentioned in section 3 of the act, if associated with language that offends, can result in a classification which would make it unlawful to show an anti-homosexual video to a youth group. This is precisely the “Living Word” scenario revisited. This is an attack upon free speech.
Even if it could be argued that such a scenario is ruled out by the wording of the act, which I seriously doubt, Stephen Franks correctly pointed out in his speech in parliament that the censor is given the ability to classify material that does not fall under the guidelines in the act; which says “Sections 3A and 3B are not limited by section 3, and do not limit the Classification Office’s power under sections 3 and 23 (2) ( c ) to classify a publication as a restricted publication”. Thus Franks noted: “This section states very clearly that the censor can apply those new tests without regard to section 3”.
Alexander’s response to Franks at this point is – well – confusing to say the least. The new provision, Alexander says, is intended “to supplement section 3 in a limited way, as described above: to allow age restrictions to prevent harm to children, notwithstanding that the material may not necessarily be generally classifiable in terms of the act. As described above, this is not a clause of general application so the consequence that Franks perceives is imaginary”.
This is gobbledegook of the third kind. Alexander’s statement that “the material may not necessarily be generally classifiable in terms of the act” is a plain admission that the censor can classify films using criteria other than that defined in the act. Either the material the censor might ban is or is not classifiable in terms of the act. If it is not then, without further qualification in the legislation, it gives carte blanche to the homosexual film censor to merrily apply his own world view and further subvert the morality of our nation.