Relatively free speech, W K Hastings

Lynley Hood, in New Zealand Books June 2003, writes of a debate in which she just wanted to tell the truth “as I saw it”. So should everybody. What caught my attention about Ms Hood’s assertion was what might be revealed, or hidden, by her use of that qualification, “as I saw it”. And I want to tell the truth, as I see it, about a few matters raised by Ms Hood.

She does battle with the spectre of censorship whenever it crosses her path. In her book, censorship is bad. She tells us that she has faced two examples of it – a court order requiring surrender of a taped interview with an Ellis juror, and a publisher refusing to publish a manuscript because it was offensive.

But do these two events fall within the ordinary meaning of censor? My copy of the Concise Oxford Dictionary (10th edition) (COD) defines the verb as “examine (a book, film, etc.) officially and suppress unacceptable parts of it”. The noun also has an “official” aspect. Surely a publisher may refuse to publish what they don’t like, for whatever reason, without being accused of censorship? Censorship is not someone disagreeing with you; it requires the state to disagree with you.

Ms Hood’s example of the court order might qualify as censorship because a state organ is attempting to suppress speech. Much depends on whether you believe censorship may sometimes be a good thing or, like Lynley Hood, you think censorship is almost always bad. Whether or not there is a rational explanation for any particular suppression of speech might determine whether you believe such suppression is “censorship” or not.

Freedom of speech is not absolute, not even in America, where the first amendment says “Congress shall make no law … abridging the freedom of speech”. Congress, like the New Zealand Parliament, has made many laws abridging freedom of speech: on defamation, town planning, false advertising, allocation of broadcast frequencies, and child pornography. There are rational explanations for suppressing some of these forms of expression some of the time.

Although both COD definitions of censor include an element of arbitrariness, the Latin origin of the word, censere, meaning “to assess”, implies criteria to assess by. There are sometimes good reasons for the state to curtail freedom of speech. I suspect that the court in Ms Hood’s example weighed up the need to administer justice, in the broadest sense, by protecting jurors from potential intimidation, harassment and second-guessing, against the likelihood of an individual journalist obtaining the story elsewhere.

Lynley Hood may think this is censorship because in her view the court got it wrong, but this was not an arbitrary or irrational process. Someone has to make the call on whether our right to a functional jury trial system should prevail over one person’s freedom of (undoubtedly nationally significant) speech. Even if the call is occasionally wrong, I think most people would rather it was made in a rational fashion by someone removed from the dispute than by the noisiest or richest or most persistent or most popular disputant. This might have been censorship, but it was not arbitrary censorship.

Ms Hood’s anti-censorship arguments are nonetheless compelling when applied to the printed word. Most people would shudder at the thought of book-burning rallies, partly because of their inherent violence and arbitrariness, but also because the printed word has a sanctity about it. It is one thing to write about how much fun it was to torture that blind homeless person; quite another to show on film how much fun it was. This explains why this scene appeared in American Psycho, the book, but not in American Psycho, the movie. When a concept migrates from print to another medium, it loses the unique prophylactic quality offered by that medium and becomes, not fair game for that implies arbitrariness, but liable to be used as a lightning rod for public debate around the limits of tolerance and free expression.

I could not agree with Lynley Hood more when she argues that everyone’s ideas “need to be out there” for democracy to work. But when she says, “if there was ever an argument for a free market, it’s in the marketplace of ideas”, once again we part company. I know plenty of democracies that work very well without completely unregulated markets, commercial and conceptual.

How does a marketplace of ideas work when everyone speaks at the same time? Or when the supply of broadcast frequencies is far less than the demand for them? Or when what is spoken silences and stigmatises those who are as entitled to participate in democracy as anyone else with a vote? Or when worthy ideas do not get heard because those who would speak them are neither rich nor powerful? Or when a person dreads having to run a gauntlet of sex magazines to buy a tin of baked beans at the local dairy?  There may be distinctions to be drawn in these examples, but what they have in common is a need for rational regulation so that everyone’s ideas do “get out there”.

Her discussion of democracy brings me to Ms Hood’s specific warning about the Government Administration Committee’s recent report on the operation of the Films, Videos, and Publications Classification Act 1993. She says we should be “very, very concerned” if the government adopts the amendments that the report recommends. The report is the multi-party committee’s view about how New Zealand’s censorship legislation (admittedly ungainly, but not really Orwellian, of title – it does what it says) can be made to work better. The legislation sets out the criteria the Classification Office must use to classify (and, yes, sometimes ban) content that has been recorded and delivered through a range of mediums.

It does not ensure that everyone’s ideas “get out there”. Publications promoting the sexual exploitation of children don’t get out there. Neither do publications promoting the use of violence to compel sexual conduct or those promoting necrophilia. Through a process that even Ms Hood would acknowledge as democratic, Parliament decided that these ideas are of such little value, or indeed so actively corrosive of democratic values, that the marketplace could do without them. The Act deems these publications to be objectionable. All the Court of Appeal did in the Moonen case was instruct censors to use a light hand when deciding whether a publication promoted any of these things. It said that freedom of expression had to be fully considered, and that any restriction on it had to be demonstrably justified in a free and democratic society. The actual classification of the Moonen publications themselves barely changed through three Court of Appeal, two High Court and two Board of Review hearings.

Contrary to Ms Hood’s statement, the Classification Office did not ban the Living Word videos. It made them R18. When the “politically correct left” took them to the Board of Review (of which I was then a member), spokesmen for two evangelistic Christian organisations testified that they would continue to show the videos to fifth-formers in violation of the Office’s R18 classification. The board decided that the videos dealt with matters of sex because they argued that homosexuality, rather than particular sexual acts available even to heterosexual people, spreads AIDS. This also seemed to satisfy the Act’s requirement that censors must give “particular weight” to the extent and degree to and the manner in which a publication treats a group of people as inherently inferior by reason of a prohibited ground of discrimination. Given videos that argued that sexual orientation is responsible for a public health crisis, evidence that this message would be preached as truth to an audience that included fifth-formers, and an instruction from Parliament to take such messages seriously, it is little wonder the board decided to ban them. A ban on these grounds could hardly be said to be “arbitrary and oppressive”.

The Court of Appeal’s Justice Thomas did not doubt the harmful nature of these videos, citing, amongst other things, the way they hurt and oppress the homosexual community, and tend to victimise and alienate a sizeable proportion of the population. Nevertheless, the Court of Appeal decided that homosexuality was not a matter of sex, and that the censors only had jurisdiction to restrict or ban publications showing sexual activity (or criminal or violent activity, or cruelty) rather than publications, like these videos, that merely expressed attitudes or opinions about such activities. Notwithstanding their “propensity for harm”, the videos were unbanned.

Ms Hood was entitled to expect that a Labour-dominated Select Committee would swing the pendulum back and restore the censor’s power to ban “family snapshots of naked children” and “videos of fully-clothed Christians” arguing about gay rights. Balloons can be fun and festive, but this one must be pricked. The censors have never banned family snapshots of naked children or videos of fully clothed Christians. The censors have, however, banned images of boys and girls changing their clothes in private, taken by concealed cameras without their knowledge or consent. And yes, we have banned videos that victimise, alienate, oppress and psychologically scar, but not because they showed argumentative clothed Christians.

Surprisingly, a majority of the Select Committee proposed that no new words should be added to the censorship criteria. It suggested the existing words should be reorganised to require the censor to give primary importance to identifying how a publication with specified content is likely to injure the public good before it is restricted or banned. A minority, consisting of National Party MPs, proposed that offensive language and nudity be added to the list of matters over which the censors have jurisdiction, namely sex, horror, crime, cruelty and violence.

Ms Hood says New Zealanders should be “very very concerned” about this report. Readers of the report and of New Zealand Books may conclude they have the luxury to dispense with one, possibly even two, verys. And Ms Hood may well find little comfort in knowing the Chief Censor agrees with her in at least one respect – no one should ever stop being concerned about where the limits to creativity and expression should be drawn.


W K (Bill) Hastings is the Chief Censor.


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