It now falls to private citizens to defend free speech

(This column was published in The Dominion Post and on Stuff.co.nz on September 5. I omitted to put it on my blog at the time but I'm correcting that oversight now. The court's decision is still pending.) 

A court case with vital implications for freedom of speech has been played out this week in the High Court at Auckland.

The proceedings were initiated by the Free Speech Coalition, which is challenging the lawfulness of a decision by Regional Facilities Auckland – an arm of Auckland Council – to cancel an appearance last year by the controversial Canadian speakers Lauren Southern and Stefan Molyneux.

RFA, which controls the venue where the Canadians were to speak, says the action was taken for safety and security reasons after it became apparent that protesters might target the event. But the coalition claims the cancellation was an act of political censorship – and that even if there were genuine safety concerns, which it disputes, RFA shouldn’t have bowed to unsubstantiated threats of disruption.

The coalition argues this set a dangerous precedent whereby a mere threat of trouble can be used to shut down events that protesters disapprove of. This tactic, which is sometimes referred to as the “heckler’s veto”, was also used to justify the ludicrous decision by Massey University’s vice-chancellor to bar the former National Party leader Don Brash.

The real reason for the cancellation of the Brash speech was subsequently revealed to be the vice-chancellor’s objection to his opinions. The Free Speech Coalition suspects there was a similar motive for RFA’s decision not to allow Southern and Molyneux to use the Bruce Mason Centre at Takapuna.

An interesting aspect of the Auckland court proceedings, which took place before Justice Pherose Jagose, was the involvement of the Human Rights Commission as an “intervener” – a status sometimes granted to a person or organisation with no direct interest in the proceedings but with expertise that might help the court in its deliberations.

Anyone expecting the commission to deliver a resounding defence of free speech would have been disappointed. Its 38-page submission canvassed legal issues and precedents but left open the question of whether RFA was justified in denying the Canadians a speaking venue. That will be for the judge to decide.

The commission did, however, say the right to free speech is not absolute, and pointed to a Court of Appeal finding that constraints on “hateful and dangerous speech” – which is what Southern and Molyneux were accused of, although we never found out whether the accusation was justified – were “seldom difficult to justify”. I wonder if that’s a clue to the commission’s thinking, and that it believes banning the Canadians was the correct action.

Certainly it seems we shouldn’t expect the commission to champion what has been regarded for centuries as one of the defining rights of a liberal democracy. It now apparently falls to private citizens, in the form of the crowd-funded Free Speech Coalition, to defend freedom of expression.  

Dry legal arguments aside, the Auckland case was interesting for what it revealed about events behind the scenes.

Documents placed before the court show the speed with which the Auckland Left’s lobbying machine moved into gear once serial protester Valerie Morse learned of the proposed speaking engagement and contacted sympathetic Auckland councillor Cathy Casey.

They knew exactly which buttons to push. Within less than 24 hours, RFA had reneged on a signed contract with the event promoters and mayor Phil Goff had got in on the act and announced on Twitter that the Canadians would be barred from all council-owned venues.

Goff placed himself at the centre of events, telling Radio New Zealand that he wasn’t going to “aid and abet racist nonsense”. He apparently wanted to present himself as the man who saved New Zealand from a pair of racist haters, when in fact the cancellation may have been the action of a risk-averse RFA bureaucracy – albeit one emboldened by the knowledge that the mayor didn’t want the event to go ahead.

One telling email exchange revealed close co-ordination between the mayor’s office and RFA, with an obviously impatient functionary in Goff’s office telling RFA at one point: “The mayor is getting itchy twitter fingers”. Hmmm.

The views of Southern and Molyneux, whom Morse hysterically described as fascists, are almost irrelevant here. Their opinions may be offensive to some, but the main purpose of the court action is to uphold the right of peaceful assembly and challenge the right of bureaucrats and politicians to act as censors.

In any case, free speech includes the right to give offence – and unless the Canadians intended to urge their audience to commit unlawful acts, and there’s no evidence that they did, they were entitled to speak.

More to the point, New Zealanders were entitled to hear them and form their own opinions as to whether the Canadians were poisonous.

Disclosure: I have donated to the Free Speech Coalition.