Free speech (at a price), Lynley Hood

I used to believe that only pornographers, bigots, blasphemers and show-offs needed to worry about censorship in New Zealand. But, in the course of bringing A City Possessed into the world, I discovered that we all have to worry about it, and I had to worry about it a lot.

It seems hard to believe that only four years ago – when I appeared on a panel with Michael King and Stevan Eldred-Grigg – self-censorship, rather than state censorship, was my primary concern. The topic was “Real people – writing about yourselves and others”. Causing offence was a big issue. Stevan was in favour. Michael was against. I just wanted to tell the truth as I saw it, without fear or favour.

Three different writers; three different views. And why not? It’s a free country. Salman Rushdie said: “Free societies are societies in motion, and with motion comes tension, dissent, friction. Free people strike sparks, and those sparks are the best evidence of freedom’s existence.”

It’s a heady freedom, and for this law-abiding middle-aged granny it seemed limitless – until the day in 1999 when a police officer arrived on my doorstep with an order requiring me to hand over to the Court of Appeal a confidential audiotaped interview with a member of the Ellis jury. If I didn’t hand it over, I would go to jail.

It was, you might say, a learning experience. Among other things, I learnt that the boundaries of free speech were nearer than I thought, and if I wasn’t careful I could end up on the wrong side. This discovery provoked me to examine that boundary a lot more closely.

I found that the European Court of Human Rights has upheld the right of journalists to protect the confidentiality of their sources on the grounds that any interference with that right is likely to inhibit the free flow of information and ideas. The Court ruled:

Freedom of expression constitutes one of the essential foundations of a [democratic] society … it is applicable not only to “information” and “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broad-mindedness without which there is no “democratic society”.

 

This ruling highlights a crucial, but frequently overlooked, point. Court decisions upholding the right to free speech are important not because they protect pornographers and bigots (though they do that too), but because they recognise that “the flow of information and ideas informs political debate”. In my view, we should cherish and applaud such decisions because they embody one of history’s most important lessons: that banning any opinion – no matter how distasteful – paves the way for a society in
which only state-approved opinions are permitted.

As I see it, in a democracy everyone’s ideas – from the inspired, to the flaky, to the disgusting – need to be out there. We need to confront our nightmares, as well as our dreams. If we can’t see the full picture, how will we figure out whose ideas are best? If there was ever an argument for a free market, it’s in the marketplace of ideas.

2

In 2000, that quotation from the European Court of Human Rights – especially the bit about the right to “offend, shock and disturb” – was my lifeline. It also proved my starting point for further research, when an interfering editor, affronted by the tone of A City Possessed, advised my erstwhile publisher that aspects of the book would “inevitably be seen as deeply offensive”. After considering this advice, my erstwhile publisher informed me that the manuscript had to be radically cut, restructured and sanitised.

To me, this was censorship; so I checked our own censorship law – a piece of legislation bearing the Orwellian title of the Films, Videos, and Publications Classification Act. (Under this Act, pornography doesn’t get censored, it gets classified; and absolutely disgusting pornography doesn’t get banned, it gets classified as “objectionable”.)

I discovered that even if my erstwhile publisher had submitted my manuscript to the Classification Office, and even if the censors had agreed that it was deeply offensive, they couldn’t ban it because the Act says:

a publication is objectionable if it depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.

 

The Act does not say: “sex, horror, crime, cruelty, violence, or political incorrectness”; so I was okay.

I found further comfort in our Bill of Rights Act. This law was enacted because Parliament recognised that without restraints on the power of government, and guarantees of fundamental freedoms for the people, it would be too easy for enthusiastic but misguided politicians to pass laws that eroded the rights of citizens. The rights and freedoms enshrined in the Act protect us from governments, and government officials, who wield power in an arbitrary and oppressive way.

Section 14 of our Bill of Rights Act says: “everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.” The Act also says that our rights may be curtailed under some circumstances (a proposition that few would disagree with), but only to an extent that can be “demonstrably justified in a free and democratic society”. This means that we can’t be stopped from speaking out just because someone disagrees with us or is offended by what we have to say.

There is, of course, a downside to free speech. If you let people say whatever comes into their heads, they’re likely to do exactly that. As listeners of talkback radio know, the right to free speech includes the right to express opinions that are misinformed, bigoted, opinionated, confused, disgusting, hurtful, offensive and wrong.

All of which raises the question: what should we do about odious opinions? Should we debate them or should we ban them? The trouble with the latter option is that, even in societies where dissenting voices are banned, censorship doesn’t work. You can’t ban ideas. All you can do is drive them underground. As Alfred Witney Griswold observed, “Ideas won’t go to jail. In the long run of history the censor and the inquisitor have always lost. The only sure weapon against bad ideas is better ideas.”

In the course of bringing A City Possessed into the world, I learnt some important lessons. I learnt that, despite our Bill of Rights Act, we can’t take freedom of speech for granted. I learnt that, if freedom of speech is to have any real meaning, it must apply to those whose opinions we abhor, as well as to those whose opinions we applaud. It must apply to those whose views offend, shock and disturb us, because they are the dissenters, and when dissent is silenced, democracy is dead. If the price of freedom of speech for me is that I must allow that same freedom to pornographers and bigots, so be it. To my mind, it’s a price worth paying.

3

During my long and bloody battle to rescue A City Possessed from the thought police, the New Zealand Court of Appeal issued two landmark decisions. The Moonen case concerned a book containing nine fictional stories describing sexual activity between men and boys under the age of 16, and photographs of naked children, mostly boys. The Living Word case concerned two videos: Gay Rights/Special Rights: Inside the Homosexual Agenda and AIDS: What You Haven’t Been Told. In both cases, the Court ruled that the Classification Office should not have banned the offending publications without first considering whether the bans could be “demonstrably justified in a free and democratic society”.

In response, pro-censorship activists from the religious right (in the case of Moonen) and the politically-correct left (in the case of Living Word) claimed that the Court of Appeal had made the world safe for pornographers and bigots. They demanded that the law be tightened to allow the Classification Office to ban publications it considered objectionable without first taking into account the freedom of expression rights of the owners, makers, publishers and distributors of those publications. In my view, the pro-censorship activists missed the point. The Court of Appeal did not condone pornography or bigotry. It did not stop the Classification Office from banning “objectionable” material. It just stopped the Office from banning such material in an arbitrary and oppressive way.

Nonetheless, in response to the outcry over Moonen and Living Word, the Government Administration Committee established an inquiry into the adequacy of our censorship laws. As far as I have been able to find out, no individual or organisation with an interest in creativity or freedom of expression was notified or invited to make a submission (but some spotted the public notice and passed the word around).

In March 2003, the Select Committee released its report: Inquiry into the Operation of the Films, Videos, and Publications Classification Act 1993. With cavalier disregard for the Bill of Rights Act and the Court of Appeal, this report advocates law changes that would allow the Classification Office to ban everything from family snapshots of naked children to videos of fully-clothed Christians arguing that gay rights activists have a special agenda, and that homosexuality spreads Aids. Whether the government takes this report seriously remains to be seen, but all New Zealanders with an interest in creativity and freedom of expression should be very, very concerned.

 

The unexpurgated version of Lynley Hood’s A City Possessed won the Montana Medal and Readers’ Choice Award at the 2002 Montana New Zealand Book Awards.

 

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