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Another backward step for the Bill of Rights
By Steven | March 15, 2008
The best measure of a country’s commitment to free speech is its willingness to protect speech it doesn’t like. At the very least, a respect for free speech involves ensuring that any restrictions are clearly justifiable. That’s how our Bill of Rights works.
The Supreme Court passed this test in R v Brooker, using the Bill of Rights Act to rein in the police’s power to use the offence of disorderly behaviour to penalise a protester.
Justice John Hansen in the High Court has just faced the same test, and flunked it.
In Evans v R, he upheld the conviction of a sloshed guy attending a concert at a Queenstown winery last March who was annoyed that the police had closed the bars at 9pm, and taunted two police officers, thanking them sarcastically for ruining everyone’s fun, then accusing police of all being rapists and saying he’d better protect his girlfriend in case they raped her using batons. He was convicted of using insulting language. (He was also convicted of resisting police during his subsequent arrest).
Were his words insulting? Sure. Were they worth a criminal conviction? Come off it.
The judge seemed to accept that R v Brooker meant that “there must be a level of insult as to raise the prospect of public disorder”. (In Brooker, Tipping J talked of behaviour that “causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear.”)
The judge also accepted that police officers are unlikely to respond to such insulting language with violence. There was no real threat to public order. It doesn’t seem that anyone else overheard the words being used. So there was no aspect of public humiliation. Nor any element of bullying. The judge said that the guy “implied that both constables… would personally indulge in behaviour that involved serious criminal offending… aggravated when it involves elements of kidnap and brutality. The comments were calculated to hurt the personal feelings of the constables and the conclusion that it [sic] did was inevitable.”
Oh, please. He wasn’t seriously suggesting these things. He was just being a jerk because they’d closed the bar. (Actually, it’s not clear from the case whether or not the police were responsible for the closure of the bars, but if they weren’t, it doesn’t seem that they told him so.) Their feelings were hurt? That’s not enough for a criminal conviction.
The judge, to his great credit, considered the core values underlying freedom of expression, to see if they were in play here. Because the speech was “purely to insult and rile the police officers” and “for no other purpose”…
He was not trying to advocate change or persuade others in the hope of improving his life or anyone else’s. He was not trying to influence wider social, political or economic environment. He comments were not even social commentary…
Well, good on him for identifying some of the hallmarks of speech we should take particular care before restricting. And I’m not going to argue that Evans’ speech falls at the core of the sort of speech that’s vital to the nation. But the judge downplays the value of the defendant’s speech in three ways. First, Evans was in fact plainly trying to make a point. He thought the police had acted high-handedly in closing the bars early. He wasn’t insulting the officers for the sake of it. That may not be a lofty issue of political principle, but it was something that mattered to his life.
Second, the judge overlooks one of the other reasons we value speech: as an outlet for hostility. Evans was venting his spleen, expressing his frustration. On this rationale, if we give people some latitude to do that, then they’re less likely to react in even less acceptable ways.
Finally, the judge barely acknowledges that Evans was tapping into a well of deep public concern at abuse of police powers. That concern had even led to an inquiry into police rapes. I think this was very much “social commentary”, though it might not have been to the judge’s taste.
But Justice Hansen does seem to accept that there was something behind Evans’ insults:
I accept the topical nature of the insults, but I do not consider that to be a mitigating factor. If his comments had been to the effect that his trust in the force had been diminished by the behaviour of a minority of officers in the North Island it could be considered differently. But clearly he was angry at not being able to access more alcohol, and the insulting comments were designed to offend and aggravate the officers with the undoubted prospect of public disorder.
Right. So what Evans should really have said was this: “Good sirs, I must protest at the unseemly haste with which you have discontinued the refreshment factilities. Nor is this the first occasion upon which members of the police have acted to the public detriment. Indeed, my confidence in the police force has been much diminished by recent reports of abuses performed against young women. (By a tiny minority of police officers, I note. In the North Island). I verily believe it would be beneficial to all if the entire police force would act with more respect toward the interests of those from whom they ultimately derive their powers.”
That would have been okay. But judge: that’s pretty much what he did say. He just said it his way. I don’t believe for a second that the police officers actually thought Evans was suggesting that they personally would rape his girlfriend. Freedom of speech involves giving people room to express themselves in their own manner, particuarly when they’re saying things that are unpopular, or saying them in an uncivil way.
The judge continued:
I also accept that police officers, by virtue of their office and exposure, are of course required to put up with being exposed to a higher degree of invective and abuse. But in this case the comments in my view cross the line. There are no indications that the grossly inappropriate behaviour of the small number of officers permeates the entire force, and the public at large generally accepts that the police force is made up of a majority of dedicated and professional officers.
Um, is there actually evidence that this is what the public at large generally accepts? Or is it simply what the judge believes? I think this passage in the judgment is pernicious. Evans isn’t restricted to saying what’s true, or what the public or the judge generally accepts. Speech can be exaggerated or provocative or sarcastic, as this clearly was, to make a point. I worry about reasoning that says, it’s all right to be insulting if I think your insult was justified, or if the public might agree with it.
So: a bad call. Evans’ speech was hardly vital to the workings of democracy, but there’s no real justification for punishing him for it. I hope it gets appealed.
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Another backward step for the Bill of Rights