Top Scoops

Book Reviews | Gordon Campbell | Scoop News | Wellington Scoop | Community Scoop | Search

 

A Step Backwards For Freedom Of Speech

No Right Turn

A Step Backwards For Freedom Of Speech


http://norightturn.blogspot.com

Today we will see a remarkable step backwards for freedom of speech in this country. Tim Selwyn - an Auckland freelance writer - will go on trial in the Auckland District Court on sedition charges relating to flyers left at the scene of an axe attack on the Prime Minister's electorate office in 2004. This will be the first prosecution for sedition in this country for at least 75 years.

Selwyn is charged with "seditious conspiracy" and "making a seditious statement". Both charges revolve around the concept of a "seditious intention" - defined in New Zealand law as an intention to "bring into hatred or contempt, or to excite disaffection against" the Queen or the government, to "incite... or encourage violence, lawlessness, or disorder" or any offence that is "prejudicial to the public safety", to incite "hostility or ill will" between different classes or groups of people, or to incite the public to bring about constitutional change by unlawful means. Numerous legal commentators, including Sir

Kenneth Keith and the great British constitutionalist Albe rt Venn Dicey, have noted that this definition is so broad as to criminalise virtually any criticism of the government. And historically, that is exactly how the law of sedition has been used in this country: as a tool of persecution for those whose political opinions were deemed "non-mainstream".

The Maori leaders Te Whiti and Tohu were detained - but never tried - on sedition charges following the sack of Parihaka. Later, the Maori prophet Rua Kenana was prosecuted for supposed disloyalty to Britain. Various Irish leaders were also prosecuted for speaking out against Britain's persecution of the Irish - including Bishop James Liston of Auckland, who was prosecuted in 1922 after criticising British atrocities during a St Patrick's Day speech. The Samoan independence leader Olaf Frederick Nelson was also prosecuted for daring to suggest that Samoans could run their own country. But the primary targets were members of the labour movement - and later the Labour Party. Future Labour leader Harry Holland was prosecuted and jailed for a speech he gave during the Great Strike of 1913 - as were unionists Edward Hunter and Tom Barker. Later, during WWI, future Prime Minister Peter Fraser, and future cabinet ministers Bob Semple, Tim Armstrong, and future Labour MP James Thorn were all jailed for speaking out against the government's policy of conscription. One - Paddy Webb - was even an MP at the time; he was jailed for speaking out on the issue during a local body election campaign in his electorate.

It is supremely ironic then that the political heirs of those persecuted and victimised under this law - the Labour Party - are now using it to persecute and victimise someone who has spoken out against them. For that is what Selwyn is being prosecuted for: speaking out. The actual act of attacking the electorate office with an axe has been dealt with under a charge of "conspiracy to commit criminal damage", to which Selwyn has already plead guilty. The sedition charges relate solely to his words, not his actions.

What of those words? Aren't they an incitement to violence? The best response to this comes from US Supreme Court Justice Oliver Wendell Holmes in his famous dissent in Gitlow v. People. Holmes pointed out the simple truth that

Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result.

In a free society which affirmed the right to freedom of speech, Holmes believed that only speech which attempted to induce immediate and concrete action (on the level of yelling "fire" in a crowded theatre) could be prosecuted. Anything which fell short of this - for example, urging the violent overthrow of government at some indefinite time in the future - was protected. Selwyn's flyers clearly fall into the latter category. Unfortunately, New Zealand law does not have any similar provision to that established by Holmes, and he is facing up to two year's jail for them.

I'll leave the final words to former Prime Minister Sir Geoffry Palmer. In a 1989 paper discussing proposed reforms to the Crimes Act, Palmer pointed out that speech which poses a threat to public order can be prosecuted under existing laws relating to incitement, and that the only role of the law was to criminalise criticism of the government. This, he felt,

...should not be a crime in a democratic society committed to free speech. Libelling the government must be permitted in a free society.

I agree wholeheartedly. This law is an archaic holdover from feudalism which should have been relegated to the dustbin of history long ago. Its revival to prosecute those encouraging opposition to government policy is not just an outrage - it is a significant step backwards for freedom of speech in this country.

ENDS

© Scoop Media

 
 
 
Top Scoops Headlines

 

Reese Erlich: Foreign Correspondent: U.S. Capitol Insurrection As Seen From Abroad

In the wake of the white nationalist mob takeover of the U.S. Capitol and Trump’s pending second impeachment, I contacted journalists and activists overseas to get an idea of how the rest of the world currently views us.... More>>


Ian Powell: Health Restructuring Threatens Patient Voice

The opportunity for public voice is vital for the effective functioning of New Zealand’s health system. Inevitably voice boils down to the accessibility quality of comprehensive healthcare services for patients both at an individual treatment and population health ... More>>


Boris Johnson At Sea: Coronavirus Confusion In The UK

The tide has been turning against UK Prime Minister Boris Johnson. Oafishly, he has managed to convert that tide into a deluge of dissatisfaction assisted by the gravitational pull of singular incompetence. Much of this is due to such errors of ... More>>

Binoy Kampmark: Encircling China And Praising India: The US Strategic Framework For The Indo-Pacific

The feeling from Rory Medcalf of the Australian National University was one of breathless wonder. “The US government,” he wrote in The Strategist , “has just classified one of its most secretive national security documents - its 2018 strategic framework ... More>>

The Conversation: The Numbers Suggest The Campaign For Cannabis Reform In NZ Will Outlive The Generations That Voted Against It

Like Brexit in the UK, cannabis reform in New Zealand fell into an age gap — given time, a second referendum would probably succeed. More>>

 
 
 
 
 
 
 
 
 
  • PublicAddress
  • Pundit
  • Kiwiblog