Skip to Content »

Free speech and Whale Oil

  • December 3rd, 2013

Today's Herald leader supports Cam Slater's entitlement to be regarded as a media person. It is welcome, and correct as far as it goes.

The editorial summarises the Law Commission on who should get its proposed regulated media toady's privilege.against being ordered to disclose sources:

"The Law Commission's definition…had four elements: the publication of news, information and opinion of current value; its dissemination to a public audience; publication must be regular; and the publisher must be accountable to a code of ethics and a complaint process."

Without actually saying it simply, the editorial highlights the flaw in the Law Commission's scheme to replace defamation with regulation as the main protection against the abuse of free speech.

The only speech that needs constitutional protection is speech  that upsets, that will be labelled 'inappropriate' or 'unacceptable' or 'offensive' by targets who would have the power to suppress it if they could. No one will bother to try to suppress Inoffensive speech.

The powerful and the comfortable (the establishment) will always find ways to frame codes of procedure or ethics in ways that enable them to rule. Think, for example, of how specialist rulers have siezed employment law to second guess and oppress humble employers. In a simple assertion of power because they can, the employment law insiders mulct lay employers for flaws in procedure. Dismissing the impracticality of 'best practice' they force employers to reward dishonest and lazy and incompetent workers for their failings. Employment law system insiders delight in telling bosses and workers that lies and disloyalty and bad faith in offending employees are irrelevant if the boss has not jumped through the right procedural hoops.

Perhaps he was misquoted, but it is odd that.Steven Price, as reported in the Herald seems unconcerned by the grave threat in the Law Commission approach. He noted about it:

"Still, it is concerned that the reporting be dispassionate and reliable. It can be argued that Whale Oil doesn't measure up on that criterion."

Free speech that is obliged to be 'dispassionate' and 'reliable' in the eyes of the establishment is not free speech at all. The free speakers who made the differences in our history, in our civilisation, were passionate. They were often hated by the majority. They often lacked the resources and the temperament to shut up till they had satisfied some ruler's standard of verification and compliance with prevailing norms of inoffensiveness.

On the other hand, I'm dubious about the basis for the privilege against disclosure of sources. The right of free speech is the right of every one of us. Confined to a privileged media class, given full strength only where it meets some establishment measure of 'balance' it would become another means of coercion to consensus.

The court should have ruled that whether Mr Slater was malicious in his publication of the relevant material did not need disclosure of sources, and avoided expanding the so-called news media privilege.

The free speech horse has bolted anyway. The officials of the Orwellian Human Rights Review Tribunal, and the Privacy Commissioner have driven it into the far paddock. When these enemies of basic human rights punish people for telling the unwelcome truth about others, the hard won limitations of defamation have gone, and free speech has been neutered.



Your defence of offensive speech is a welcome change of heart since you opined that flag-burning should not be protected.

A few comments. I wonder where on earth you get the idea that the Law Commission had a scheme to replace defamation with regulation as the main protection against the abuse of free speech. It didn’t say anything at all about defamation. And the system it proposed was a much more light-touch than the current broadcasting regulation system, and on a par with the existing Press Council, and was generally welcomed by the media.

I’m not sure you really understand the Law Commission’s proposal (have you read it?) It doesn’t allow any role to the government in setting standards or complaints procedures.

You say I seem “unconcerned by the grave threat posed by the Law Commission’s scheme” and your evidence is a statement I made criticising the use a judge made of the Commission’s work – because I thought he’d underplayed the pro-free-speech comments made by the Commission. If you want to engage with my views on either issue, they’re right there on my blog.

The Law Commission isn’t saying that free speech must be responsible and dispassionate. It’s saying that to be given the privileges of source protection and exemption from the Privacy Act and access to closed court hearings etc, there should be some confidence that the journalist will be serving the functions of free speech, and the best way to ensure that is some form of industry-led complaints system. It’s not compulsory. They don’t have to join. Would you rather give those privleges to everyone?

The Law Commission wasn’t proposing stopping anyone else from doing what they like.

Your reasoning about “coercion to a consensus” in relation to source protection seems very dogmatic to me. Is there a jot of evidence to support it? Are you saying that source protection doesn’t support the flow of information from people who might otherwise keep silent? If not, how is this a coercion to consensus, given that most confidential sources are criticising the establishment? Are you saying source protection should be removed altogether? Or given to everyone?

Your suggestion about what the court should have done makes no sense either. Have you read the decision? Do you understand what the issues were? Do you have any sense of the law of defamation? The judge had no power in this decision to rule on issues of malice, which in fact are irrelevant anyway, since qualified privilege is not a defence.

You completely lose the plot in the final paragraph. You surely know that NZ is routinely ranked among the top dozen countries in the world for free press by the two international bodies that take notice of these things? Can you provide more than a single example of the Privacy Commissioner and HRRT suppressing some significant truth?

  • Stephen
  • December 4th, 2013
  • 4:12 pm

Flag burning is not speech. It makes no attempt to persuade. Its only purpose is to offend. It is designed to oblige people to either implicitly abandon their affection or loyalty to the symbol , or to use coercive force to assert their continuing loyalty.

The protection of speech is so that words and persuasion are the agents of opinion change in our society, instead of force, intimidation and other elements of coercion.

Sticks and stones may break my bones but words will never hurt me is not true, but it describes the boundary. Flag burning, like shouting fire in a crowded theatre, is chosen so because it is across the boundary into law breaking.

I see it as in the same category as sit-downs, occupations, pickets and other unlawful interferences that are intended to be coercive, not persuasive by logic, rhetoric or other words.

I now regret my authorship of s 105(3) of the Local Government Act entrenching NZBORA, since judges have used it to erect a spurious ‘right to protest’ by which they mean a right to break the law coercively by interfering with the rights of others.


I see you don’t seem to disagree with anything else I said.

As for flag-burning, let me make two simple points. One is that the context in which the flag-burning occurs almost always makes clear what the message is. For example, in the Valerie Morse case (disclosure: I was one of her lawyers), she was burning the flag next to a banner that said something like “Lest we forget, Already forgotten. Afghanistan, East Timor, Solomon Islands, NZ troops out now”. The burning of the flag drew attention to that message, and expressed her deep sense of the betrayal of our country by our government’s military policies. I don’t believe that you don’t understand that.

Secondly, I don’t believe there is a court or free speech lawyer in the world who agrees with you that flag-burning isn’t speech, though some occasionally find that its offensiveness is such that it can be criminalised in particular circumstances. Presumably, once it is accepted that a message is being communicated by the flag-burning, you would condemn any attempt to punish the communicator for offensiveness?

  • peterquixote
  • December 7th, 2013
  • 10:39 am

My general opinion, Mr Stephen Franks does good work. I am sometimes an offensive person in writing but Mr Stephen Franks has never banned my comments. I see Stephen as a stalwart of democracy.I would not write here otherwise.Life is hard. My wife is beautiful

Leave your comments:

* Required fields. Your e-mail address will not be published on this site

You can use the following HTML tags:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>