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Karl du Fresne is a freelance journalist and columnist. A former editor of The Dominion, he has written extensively about freedom of the press. He is the author of Free Press, Free Society (1994) and The Right To Know: News Media Freedom in New Zealand (2005), both published by the Newspaper Publishers' Association.

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Opinion piece by Karl du Fresne
29 February 2008
Free Speech, Anyone?

Join the dots here. The New Zealand Olympic Committee, with the backing of the Minister of Sport, tries to muzzle athletes taking part in the Beijing Games. The police are issued with instructions allowing protesters to be blocked or moved from view if they offend a visiting VIP. Parliament passes an extraordinarily elaborate set of laws protecting Rugby World Cup sponsors from competitors’ advertising. The Government and its supporting parties bulldoze through Parliament a Bill placing unprecedented restrictions on what people may legally say about politics during election year. Immigration officials ban an ageing, discredited academic from entering New Zealand to expound his odd theories about the Holocaust. An arrogant Minister of Health publicly attacks elected members of a district health board, then tries to forbid them from speaking out in their own defence. The Race Relations Commissioner calls for tighter controls on TV programmes that cause religious offence. And the Prime Minister rebukes newspaper editors who dared to publish the so-called Muhammad cartoons.

Free speech, anyone?

New Zealanders are among the freest citizens in the world in terms of their right to express themselves. While not entrenched in supreme law here, as it is in America’s First Amendment, this right is no less real. It has been upheld and promoted by enlightened judges, liberal-minded politicians and public servants such as the Ombudsman, all of whom recognise that democracy cannot function without free speech. It was given legislative force in the Bill of Rights Act 1990, which holds that everyone has the right to “seek, receive and impart information and opinion of any kind and in any form”. But as the examples above make clear, it is a right that is under constant, insidious attack.

The motivations vary. Attempts are sometimes made to suppress free speech in order to avoid offending powerful “friends”, as in the case of the misguided attempt by Olympic officials to prevent athletes from talking about what they see in China. This clumsy diktat brought down a storm of condemnation on the Olympic Committee, forcing it to back down – an encouraging sign that crude attacks on free speech will arouse resentment, even if some of the more subtle ones go unnoticed. The same deference toward totalitarian foreign powers presumably underlies the new police general instructions which allow police to move protesters out of sight if their behaviour happens to embarrass or offend an important visitor. Ironically, these new instructions came into effect at the same time as the Police Complaints Authority issued a long-delayed finding that the police acted wrongly in obstructing pro-Tibetan demonstrators during a visit to Christchurch by the Chinese present Jiang Zemin in 1999. One step forward, two steps back.

Sometimes the motivation for stifling free speech arises from pure political correctness, particularly that form of political correctness which manifests itself as an anxious desire to protect sensitive minorities against anything that might upset them. Race Relations Commissioner Joris de Bres’s sanctimonious finger-wagging over television’s screening of the famous “Bloody Mary” episode of South Park falls into this category, as does Helen Clark’s disapproval of the newspapers that published the Muhammad cartoons. Yes, there were strong arguments both for and against publishing the cartoons. But once those newspapers had made the decision to publish, the first duty of the prime minister in a free country was surely to defend their right to do so. Because in the face of the hysterical outcry that followed, the crucial issue was no longer whether the editors had made the right decision, but whether they had a right to publish material that some people found offensive. There is a very substantial body of English and New Zealand law that upholds the right to express offensive and outrageous opinions. It is part of the price we pay to live in a free and open society.

Occasionally free speech is suppressed because it is simply considered too dangerous for our own good. In the case of the batty Holocaust denier David Irving, the state took the paternalistic view that we had to be protected from his opinions. But by denying such individuals the right to speak, the state perversely gives them credibility; people think there may be some merit in what they say, for why otherwise must we be prevented from hearing them? Dangerous views are nearly always safer out in the open than driven underground.

A more recent phenomenon is the stifling of free speech to pander to commercial interests. We have seen this in the unholy alliance between Parliament, the Rugby Union and Rugby World Cup sponsors, who have colluded in a ruthless attempt to keep unapproved advertising away from World Cup venues in 2011. This attack on commercial free speech is striking for its sheer excess, and smacks of the frenzied attempts by totalitarian regimes to stamp out dissent. The Economic Development Minister will declare “clean zones” around venues (the legislation contains no limits on how large these zones can be), “enforcement” officials will be allowed to enter private property to seize illicit advertising material, and breaches of the law may incur fines of up to $150,000. A state that can justify such sweeping suppression of free speech to protect commercial interests is likely to find it easier in future to justify restrictions on other pretexts as well.

But perhaps the most common reason for suppressing free speech is naked political self-interest. We have seen this recently in the form of the Electoral Finance Act. Strip away all the sophistry surrounding this legislation, and we are left with one stark fact. The most fundamental act of the citizen in a democracy, the casting of an informed vote, is now hedged about by a thicket of bewildering rules about who can legally say what in election year. Politicians who insist that this will not inhibit political discussion are either naïve or dishonest, and I don’t think they are naïve.