A Step Backwards For Freedom Of Speech
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