PLEASE RETURN SOONEST
April 20, 2011
RNZ is reporting that John Key used an Air Force helicopter to attend social events. It says John Key can’t respond because he’s overseas.
If only someone could create a magical device that would allow us to talk across long distances…
Topics: General | 50 Comments »
Pagani sides with the wowsers
April 20, 2011
John Pagani reckons the BSA got it right about Aramoana, and I got it wrong. He thinks it was a “balanced call”, made by the experts we’ve appointed to administer standards that, after all, include good taste and decency and children’s interests. For him, I’m a “Bill of Rights fundamentalist” who treats this as an “entirely legal question” and insists that free speech must trump sensible policing of social norms on early evening television. He helpfully points out that the right to freedom of expression is subject to reasonable limitations such as can be demonstrably justified in a free and democratic society, suggesting he doesn’t read my blog much, since I bang on about that all the time.
Right. The battle is joined. Let me now explain, as condescendingly as I can, why he’s wrong. (Though I don’t really think he’s a wowser).
I’ll start by granting that he makes some fair points. The BSA are appointed for their expertise on matters of broadcasting standards. They should be given room to do that without the law nitpicking at their performance all the time. The Bill of Rights doesn’t overrule the standards. They have to give some meaning to “good taste and decency” and “children’s interests”. For what it’s worth, I agree that those limitations on broadcasters’ speech, are in general, reasonable.
But none of that makes any difference. Pagani talks as if the BSA is not subject to administrative law. They are. Let me put part of my argument in purely administrative law terms, without any mention of the Bill of Rights. Here it is: the majority manage to uphold a complaint against a TV programme, saying they’re looking at context, and setting out the contextual factors they have considered: but they completely overlook the most glaring and telling contextual factors that count in TVNZ’s favour. Here are the factors they considered relevant:
— the programme was unclassified (ie not G or PG or AO)
— it contained two warnings
— it had an adult target audience
That’s it. They also note that the programme “revisited a significant historical event”.
And here’s what they missed out from their list of contextual factors:
— the word was not used in a sexual or abusive way
— the word was recalled as part of a dialogue about what actually happened in an extremely emotional moment
— it was among the last words spoken by David Gray
— the word was spoken as part of a thoughtful recollection by a police officer who had shot Gray, and who was clearly diffident about using it
— there was nothing at all gratuious about the use of the word
Those are plainly – even by the BSA’s own repeated affirmations of the importance of context – relevant considerations. TVNZ had put them before the BSA. Pagani would not usually excuse a public body for failing to take into account manifestly relevant considerations. Those considerations tell strongly against their conclusion.
But perhaps I’m being unfair. Perhaps it is supposed to be obvious that the majority took these factors into account. They are referred to earlier in the decision when the parties’ arguments are recounted, and later, when the Chair issues his dissent. It defies belief that they weren’t aware of them. So perhaps they decided they didn’t need to list those points in the place where they always – always – set out the list of factors relevant to context. Still, that’s very bad administrative practice, and denies us the opportunity to understand how they would have grappled with those considerations. Because… try adding those factors I’ve listed to the three they listed – all of which tell against an uphold here – and then try to marshall a sensible-sounding conclusion that “even so, there’s a breach”.
I’d also argue that this decision is inconsistent with other BSA decisions listed in my first post, as well as a vast range of others that insist on the central importance of whether the use is gratuitous. It also draws on research in a questionable way (I think there’s a difference between surveys about the word “fuck” and the connotations they are likely to provoke, and the way the word “fucking” was used here.)
And that’s without the Bill of Rights. Don’t worry, I haven’t forgotten it. In essence, what this requires of decision-makers is a due sense of proportion when restricting protected rights. That’s the heart of it. In fact, the judges often summarise it as “proportionality”. I think the BSA has, to borrow from Tipping J, used a sledgehammer to crack a nut. What proportionality requires is a balancing of two things: how important the particular speech is, and how important the particular restriction is. Here’s Tipping J again:
The more value to society the information imparted or the type of expression in question may possess, the heavier will be the task of showing that the limitation is reasonable and justified.
In the UK, it is now established that this is, indeed, a question of law. That is, it’s something the BSA is capable of getting wrong, and if they do, the courts have power to fix it. (For all that, I suspect that judges will be likely to pay some respect to the assessments of expert decision-makers like the BSA, particularly where they spell out a sensible weighing process).
And once again, I’m happy to say that this balance is still generally best left to the BSA. They’re the experts at weighing the interests involved. They have even taken some steps recently toward actually following this weighing process in their decisions, instead of just assuring us in a piece of boilerplate at the end that their decisions are Bill of Rights compliant.
My point: the balance in this case is a no-brainer. Almost all the factors tell against punishing this speech. The majority of the BSA recognise that that the speech is “high value”. It’s a serious documentary about an important historical event. So what’s the harm to some equally important social interest on the other side of the equation? Harm that’s damaging enough to society to warrant penalising the important speech? Well, actually, as I noted, the BSA never assesses the psychological evidence about what harm fleeting non-abusive swearing might do. (None). To be fair, TVNZ didn’t put it before them.
Instead, they looked at how popular the words were, and decided they were unpopular to many – perhaps most – viewers, based on their very general surveys. Okay, so it’s a bit mischievous of me to say they treated this like a popularity contest. They were plugging into some sensible research they’d conducted to get a bead on the social norms they’re required to enforce. (In fact, they plopped this part of their reasoning under the “Children’s interests” banner, which seems weird. How does the fact that a proportion of adults think the language is inappropriate prove that it’s harmful to children?). But there is a point here. When speech is contributing to an important public conversation, thoughtful judges and academics around the world say that we should be very slow to penalise it on the grounds of its offensiveness. Leeway has to be allowed for the way people choose to speak. That surely goes double for a programming exploring the events on the day of one of New Zealand’s biggest criminal tragedies.
So: on one side of the balance – high value speech. On the other – two brief uses of a fairly common swear-word which harms children and society by….? How? They don’t say, except some bromide about children being vulnerable and adults expecting cleaner language at that hour. Now, that might normally be enough. But because this is high-value speech, they need a more compelling justification. That’s the missing step in their reasoning. I think it’s a legal error. And I think if they’d asked themselves the right question, they couldn’t have reached the decision they did. It’s just not … proportionate.
The BSA majority’s best argument, I think, is that requiring the broadcasters to bleep the word or broadcast later wouldn’t much hamper its speech. I guess the thinking is that even if it’s high-value speech, the value isn’t diminished much by this particular change. The restriction is minimal.
Like I say, that comes closest to working for me. But it still doesn’t get there. For one thing, these words are significant in context. For another, there’s no evidence that children are harmed by exposure to them in this way. For another, the decision surely means the F-word can never be used in early evening TV, no matter what the context. For another, it seems to require broadcasters of serious current affairs programmes to wield the censorial scalpal even to language that’s central to the events they’re focusing on.
I doubt I’ve convinced John Pagani. But I hope TVNZ can convince a court in their appeal.
Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | No Comments »
Oh, and one other thing about the BSA’s dumb Aramoana decision
April 20, 2011
It was based on a really dumb complaint. Here’s the BSA’s summary of the complainant’s original grounds:
… the policeman’s “obscene language” breached standards relating to good taste and decency, law and order, responsible programming and children’s interests. The complainant considered that it gave “a negative impression of New Zealand policing” and that “it signals that criminals should naturally abuse, taunt and swear at police because police are expected by TV to talk just like the cons. [The complainant] was of the view that the broadcaster may have “coached” the interviewee into thinking that he had used these words.
The complainant has only just managed to raise the issue that the majority of the BSA eventually upheld, and the thrust of his complaint is spectacularly dopey.
This isn’t the first time that the BSA (and to give them credit, the broadcasters) have had to rescue the droplet of viable complaint from the complainant’s tsunami of dross, and it is probably sensible that our system works hard to accommodate complainants who aren’t familiar with the precise requirements of the braodcasting standards. But still, this off-target ramble might have been a clue to the BSA that these views are not widely shared…
Topics: Broadcasting Standards Authority | No Comments »
For fuck’s sake
April 19, 2011
I’ve read hundreds of Broadcasting Standards Authority decisions in my time. The vast bulk of them, I agree with. Most of the rest, I figure it’s a line call. Then there are the shockers.
This is one. The BSA has found that a story on the TVNZ current affairs show Sunday about the Aramoana massacre in 1990 has breached standards concerning children’s interests and taste and decency.
Is that because it might be disturbing for children watching at 7:30pm to hear about a gunman who senselessly mowed down a bunch of people, including children? No. That might have made some sense, but that’s not what the complainant complained about or what the BSA found.
It was because a policeman being interviewed – not just any policeman, but the one who shot David Gray – twice used the word “fucking” when describing the events.
Well, he shouldn’t be talking about sex at 7:30pm, you say? But he wasn’t talking about sex.
Well, he shouldn’t be using an abusive word at 7:30, right? But he wasn’t using it in an abusive fashion.
Well, that language isn’t appropriate to describe a police stand-off. But he wasn’t using it to describe what happened. He was quoting what he Gray said to each other.
Well, TVNZ should at least give a warning. But they did. They gave two.
Here’s the excerpt:
I yelled out to him… I never told anybody this and I don’t know if it should be recorded for history or not, but I said to him: “You’re fucking good with women and kids, come out here and have a go at us.
He later quoted Gray as saying
Kill me, fucking kill me.
The majority of the BSA got a lot of things right. They said that context is all-important. They noted that this was high-value speech. They recognised that warnings had been given. They admitted that this programme was not likely to appeal to children. They acknowledged that the Bill of Rights was in play.
But they felt that it was, after all, broadcast at 7:30pm. Children may be watching, and their innocence and vulnerability needs to be protected from inappropriate language. People don’t expect that word to be broadcast then. BSA surveys suggest that more than 70% of us don’t approve of “fuck” in an interview or drama. Besides, the story could be told just as easily if the word was bleeped out.
I think the BSA did not think hard enough about the context here. Or about the need, when they’re evaluating a serious and significant current affairs programme, to come up with a better justification than normal for penalising swear words.
This was not by any stretch of the imagination a gratuitous use of the F-word. It is difficult to imagine a usage better justified by the context. It showed the intensity of the feelings involved. It smacked of their desperation, their urgency. It offered a window onto their mindset. It was part of the reality of the scene. It was not used in a sexual or abusive way. It was fleeting. In their discussion of context, the majority didn’t mention any of these things.
I also think that while the BSA recognise that this is significant speech, they don’t follow through with the implications of that. It means they need a proportionately more compelling justification before penalising it. It also means that they might have to look a bit harder at the actual harms involved. In fact “there is no psychological evidence of harm from fleeting expletives”. The evidence suggests that most kids have already been exposed to these words. It’s ridiculous to suggest that by bleeping them out in some early evening programming, children’s moral innocence will be preserved, even if it were actually under threat from exposure to a little non-abusive swearing.
In addition, a closer look at the BSA’s general research on the word “fuck” shows that it has become increasingly acceptable. Between 1999 and 2009, the proportion of people who find the word fairly or totally unacceptable has fallen from 70% to 51%. But the BSA didn’t cite this bit of the research. It focused on the research about specific scenarios, such as a television drama, which wasn’t really comparable. More comparable were the stats about its use in interviews, but I have a hunch that when 71% of people said they thought the word “fuck” was unacceptable in an interview, whenever broadcast, this was not the sort of interview or the sort of use of the word “fuck” they had in mind. I doubt, for instance, that many New Zealanders disapproved of Bono’s Golden Globe award acceptance speech, when he said “This is really, really fucking brilliant”.
In any event, the BSA has in the past accepted the use of the word “fuck” in other current affairs contexts that seem much less significant (see my post on another unjustified BSA decision here).
The BSA’s chair Peter Radich made most of these points in a compelling dissent:
In my opinion, this was good quality television recording part of our social history, which, with its warnings, was able to be broadcast at the time that it was and which was within the bounds of freedom of expression.
Too right.
Topics: Broadcasting Standards Authority | No Comments »
Memo to Greg O’Connor
April 18, 2011
It’s a bit of a worry when even the police don’t understand the rules of contempt of court.
Police Association President Greg O’Connor scores an F on his understanding of the sub judice rule, as evidenced by his appearance on Close Up to defend the police’s handling of the Tiki Taane arrest.
The sub judice rule says that when a case is before the courts, no-one is permitted to comment on it in a way that may prejudice the outcome.
O’Connor apparently decided that if Tiki Taane was going to flout the sub judice rules by making public statements, it was fair game for the police too. Let’s just hope he doesn’t apply that same reasoning to, say, burglary. The thing about the police is, they’re supposed to obey the law, even when others don’t.
O’Connor also seems to think that the sub judice rule is only there to protect defendants. Wrong. As our current Chief Justice made clear in a recent contempt case, comment that prejudices the prosecution can also be a contempt.
But I suspect that neither side has actually committed a contempt. If this matter goes to trial, it’s likely to be more than 6-8 months away – the time the Court of Appeal says it usually takes jurors to forget news stories. And the failed Fairfax contempt case (in which much more inflammatory material was published) rather suggests that the sub judice is something of a dead letter these days – unless the publication occurs very close to the trial. [Update: Tony Smith has just pointed out to me that since the offence is only punishable by 3 months in prison, there won’t be a jury, another reason to suggest that there has been no contempt here.]
[I suppose I should also note that O’Connor insisted that the arrest had nothing to do with Tiki Taane singing “Fuck the police”. But his account on Close Up of what the case was about was so incoherent that it’s hard to know what to think. He did suggest that Taane rarked up the crowd, and he was leading a chant of “Fuck the police” after a fight broke out on the dancefloor. The bouncer handled the fight, and the police withdrew, said O’Connor, as the mood turned ugly. They returned later for a quiet chat with Taane, he said. At this point, they had no intention to arrest him. Apparently then, whatever role the chanting had, it doesn’t seem to have been grounds for arrest and prosecution.
O’Connor then says Taane was uncooperative, refusing to give his address. (Taane’s account is here). In fact, Taane wasn’t obliged to give his address. And it’s difficult at this stage to see what he might have done that was disorderly, or likely to cause violence. O’Connor seems to realise this and says “there were still people around”. But again, it’s difficult to see where the incitement was at this point. On O’Connor’s account, it seems the police can only have formed an intention to arrest him because of his response to their questioning. If that’s so, he’s right that the arrest had nothing to do with the song. But it also seems to have had nothing to do with disorderly behaviour likely to cause violence to start or continue…
Topics: Contempt of Court | 216 Comments »
Jumping the gun?
April 18, 2011
Does Saturday’s front-page DomPost story break the law on reporting possible suicides? I think it does.
The story reports that Timothy Parlane was “killed by a train” shortly after police were warned that he was “suicidal”.
The Coroner’s Act prevents the publication of any particular relating to the manner of death when there’s reasonable cause to believe the death was self-inflicted… unless the Coroner has given permission. The story notes that the matter is before the coroner, but doesn’t say whether any such permission was given (or even sought).
However, the police tend to cut the media an awful lot of slack in enforcing this particular law, so I’m guessing nothing will come of it.
Topics: Journalism and criminal law | No Comments »
CERA sweepstake
April 15, 2011
How long before the first amendments are needed to the new Canterbury Earthquake Recovery Act?
Topics: General | 2 Comments »
Bouquet to SST
April 13, 2011
Adam Dudding of the SST has written a terrific profile on Paul Henry, deftly revealing him as an egotistical blowhard, but somehow likeable. I am fascinated by Henry’s (no doubt accurate) vision of himself as an opinion merchant. The pride Henry takes in the quality of his opinions is related to their ability to provoke reactions, not any effort he makes to inform himself of facts. It’s an insight to learn that he is a man who is apparently capable of believing both of these things at the same time:
I cannot remember one thing that I have ever said with the aim to cause offence or the aim to get publicity or anything like that.
I have no doubt there will be a lot of people who will listen to me with the sole purpose of being offended. And I hope I don’t let them down.
It all reminds me of this exchange, from US shock jock Howard Stern’s movie, Private Parts:
Researcher: The average radio listener listens for eighteen minutes. The average Howard Stern fan listens for – are you ready for this? – an hour and twenty minutes.
Pig Vomit: How can that be?
Researcher: Answer most commonly given? “I want to see what he’ll say next.”
Pig Vomit: Okay, fine. But what about the people who hate Stern?
Researcher: Good point. The average Stern hater listens for two and a half hours a day.
Pig Vomit: But… if they hate him, why do they listen?
Researcher: Most common answer? “I want to see what he’ll say next.”
Topics: Media ethics | No Comments »
Protesters ahoy
April 12, 2011
Andrew Geddis on Pundit has posted an analysis of some of the legal and constitutional issues surrounding Greenpeace’s protest against mining surveyers on the seas off the East Cape.
Among other interesting points, he suggests that the seas can’t be a public place for the purposes of a charge of disorderly behaviour. I’ve suggested they can, though that’s not to say that such a charge would be appropriate.
UPDATE: the debate has moved well beyond disorderly behaviour, but there’s still a bit of head-scratching as to the width of the police powers.
Topics: Protest speech | 2 Comments »
Fuck the police indeed
April 12, 2011
If the facts in this story are accurate, this seems a very questionable exercise of police powers:
A number of people at the gig said [singer Tiki] Taane began singing “f*** the police” when they carried out a standard inspection of the club.
When they approached him afterwards “things got out of hand”, a person who did not wish to be identified said….
Taane was arrested while performing at 3am and has reportedly been charged with disorderly behaviour likely to cause violence to start or continue. I’m not sure what “things got out of hand” means, or whose hands they got out of, but this sounds more like a protest than an incitement to me.
PS 1 Here’s Taane’s statement from his Facebook page.
Hey everyone, at 3:25am on Sunday the 10th of April I was arrested at my R18 concert in Tauranga. I was handcuffed and taken to jail were i spent the rest of the night. I have been charged with – Disorderly Behavior, likely to cause violence – for reciting the lyrics to a song by an American rap group called N.W.A. This song is a pr…otest song written by Ice-Cube in 1988, and i have often played and sang along to it at my R18 concerts with no trouble at all. Also arrested was the promoter of the concert, and my DJ, who was later released uncharged. I have had an excellent rapport with the NZ Police and I intend to keep that relationship positive. Im 34 years old and this is my first ever offense, and i feel it is unfortunate that one particular Police Officer became upset with the N.W.A lyric i sang that night. It was an awesome concert with an amazing crowd, and this is why i always come back to Tauranga to play. I would like to thank my whanau and friends for their support, and really do hope this is resolved positively and soon. All the best to everyone involved. Peace & Love Tiki Taane.
I suspect he means it’s his first ever charge rather than offence.
PS 2 Here are the lyrics to “Fuck tha Police” by NWA. I think it’s fair to say it’s a protest against police racism, in the context of a satirical court hearing. It’s also fair to say that a certain amount of retribution is fantasised about. The song has been widely covered, and is ranked 417 on Rolling Stone’s 500 greatest songs of all time.
PS 3 There are lots of interesting comments on Taane’s website. Some claim that the police were being intimidating. Some berate Taane for badmouthing them when they were just doing their job. One says Taane simply started chanting “Fuck the Police” in the middle of a different song (which also suggests that he didn’t cover the more inflammatory lyrics in the NWA song). Another says by their over-reaction, the police undermined their own authority. There doesn’t seem to be any discussion of any violence actually breaking out or being threatened.
Topics: NZ Bill of Rights Act, Protest speech | 46 Comments »
« Previous Entries Next Entries »