Chelsea Manning is a convicted criminal and so some say the government should not allow her entry to New Zealand. But on what grounds should any government be allowed to police speech? How do we draw the line? 

So there's a fair bit of contention over whether Chelsea Manning should be admitted to these fair islands for the purposes of giving a speech. The answer to all this controversey is, of course, clear: Manning should be allowed in.

Manning should be allowed in. If New Zealanders wish to hear what the disgraced former soldier wishes to say, then they are entitled to hear it.

It seems that, due to Manning's convictions, entry requires the consent of the Minister of Immigration. And it would be one thing if, for example, Manning was simply coming to take a holiday. But if the purpose of the visit is to give a political speech then the freedom of expression issue is engaged.

In such case, the government should use its discretion in the way that best safeguards and upholds the idea of free political discourse.

It's not that free speech is an absolute right. Nobody really doubts this. There can be good and compelling reasons to restrain speech. It's just that Manning’s treachery is not one of them.

How do we arrive at that conclusion? For some, the answer is simply that Manning is one of the good guys. The other people, the ones they don’t like, are the bad guys. End of thought process.

A more sophisticated sounding version of the same argument is that we must judge each speaker and each proposed speech on a case by case basis. The value of expression by a person of a certain class or type must be weighed against the effects of the speech on society. Is the value of letting the speech preceded greater than the coarsening of our political discourse that will result? Work that out, and you have your answer.

But this suggestion is really little different in substance from the partisan mob approach. For one thing, it does not resolve the question as to makes the decision. Should it be left to the courts, so that before saying something controversial, a would-be speaker needs to spend tens of thousands of dollars and wait more than a year before getting the go-ahead? Should the decision rest with unaccountable public servants? A Department of Free Speech to provide the censors?

Or maybe we should empanel three verified Twitter users to make the decision whenever the question is raised. In very tricky situations, perhaps a non-binding Twitter poll could be taken to assist the inquisitors.

Back in the real world, it seems that the problem cannot be resolved through the prior restraint of potentially controversial speakers.

Truly bad speech, therefore, should generally be discouraged by the punishment of those who cross the line. And for that to be fair, the likelihood of punishment needs to be known in advance. That means the rules governing speech must be intuitive, predictable and clearly defined.

Complex balancing tests do not meet that requirement. They are too subjective and flexible to guard such an important liberty. They can be problematic for the rule of law because they don’t provide the predictability and certainty that we need to live our lives without turning to the courts for adjudication on every matter.

So when we regulate speech, it should be through big, visible red lines. What is lawful must be clearly separated from what is unlawful and everything that is not prohibited must be allowed. Any person of reasonable intelligence should be able to intuit what they can and cannot say with some certainty.

With that in mind, when is the punishment of bad speech justified? On a number of occasions, actually. Here are three discrete examples.

Incitement to immediate lawless action: The state is justified in prohibiting speech that is intentionally directed at inciting some imminent, specific and lawless action. Deliberately urging on a riot is a good example. So too, I think, would be calling on somebody to blow up the next state opening of Parliament.

Obscenity: The state is justified in outlawing material that is

  • Solely intended for prurient purposes; and
  • That is not intended to communicate anything of cultural, political or artistic nature; and
  • Which society thinks to be grossly immoral and has prohibited through an act of Parliament

Blackmail: The state should punish those who try to force others to bend to their will by way of a threat to:

  • Accuse them of something; or
  • Disclose something embarrassing about them; or
  • Hurt them or damage their property.

I should stress here that this is how I think the law ought to work. It does not entirely reflect how the law does work. And it is almost certainly true that there is much in the foregoing that the priestly caste of law school lecturers would hate.

It also should be noted that, while I have boiled the concepts of incitement, obscenity and blackmail to essential elements, even those leave room for interpretation. That's just in the nature of law and the English language generally. But as far as rules go, they are much more categorical than the indiscrete tests that are suggested as a basis for regulating speech.

None of this is particularly hard if you put some thought into it. This is why, to the extent that there is an assault on freedom of speech, it's not actually coming from the bench. Appellate court justices, in this country and others, are actually quite solid on the subject. More often than not, the desire for control emanates from the ranks of administrators, be they in the academy or public service.

This whole saga has been a happy hunting ground for hypocrisy in speech issues. Much of the boorish, unthinking variety. Some of it operates under a veil of dissembling and special pleading. But there have also been admirable displays of consistency.

And in the hopes of living up to that spirit, I say we should let Manning come here to speak. Of course we should. It’s not even close.

Comments (8)

by KJT on August 30, 2018
KJT

You forgot another reason. Breaching privacy.

Another is slander. But that only applies if the person being slandered is wealthy enough to sue.

by Lee Churchman on August 30, 2018
Lee Churchman

As everyone knows, in many areas pornographic material depciting consensual homosexual activity was unjustly banned using more or less those criteria whereas equivalent material portraying heterosexual activity was allowed. It's reasonable to conclude that some sort of non-discrimination clause should be added to decisions involving obscenity. 

Anyway, the case for banning obscene material seems no better off than the case for banning hate speech. The harm done by obscene materials, especially those which are entirely virtual seems much less than that done by hate.

by Liam Hehir on August 31, 2018
Liam Hehir

Interesting. What would you do about child pornography?

by Lee Churchman on September 01, 2018
Lee Churchman

@Liam

Authentic child pornography involves a criminal sexual act on a non-consenting party. As such, distributing media portraying the act amounts to re-victimization and/or participation in a crime and should be censored on those grounds. 

Liberalism has a much harder time with fictional or virtual child pornography, where no person is actually harmed. This can include people who are not minors presented as minors, prose describing fictional acts, and drawings or computer simulations (the latter can be purchased in Japan). The arguments that these cause actual child abuse face the same problems as the argument that regular pornography causes sexual assault (you would have had to be living in a cave for the last 25 years to still believe this). The underlying reason is that liberalism doesn’t have a concept of depravity—anything adults consent to that doesn’t harm third parties is ipso facto acceptable to liberalism. 

I guess people can go with liberalism and just accept that these things should be allowed, but only to adults and only in private. Or we can accept that it shows that liberalism is broken. I tend to the latter view, but good luck trying to convince people of that.

On the gay thing, my view is that people were just mistaken to view gay pornography as obscene (probably because they had a poor understanding of homosexuality—the DSM regarded it as a mental illness up until recently). I guess I would say we can be pluralists about sexual morality without accepting depraved acts. 

by Charlie on September 01, 2018
Charlie

The relevance of all this is greatly diluted in a world where I can access this person's opinions online if I wish.

 

by Dennis Frank on September 02, 2018
Dennis Frank

Liam wrote:  "if the purpose of the visit is to give a political speech then the freedom of expression issue is engaged.  In such case, the government should use its discretion in the way that best safeguards and upholds the idea of free political discourse."

I agree that this is the crux of the issue.  However, it seems to me that Manning's moral stance is more interesting, and if she articulates that in Aotearoa I hope it proves enlightening for all.  Morality was so discredited by christian hypocrisy that by the time I encountered the concept as a teenager in the sixties it was only ever advocated by people who were sick in the head.  Secular folk have been lax ever since in their advocacy of the concept.  Since morality is part of the human condition, we need to do better than that.

Many of us learn an intuitive sense of ethical conduct, but morality kicks in when that is shared as part of the commons, via culture.  In other words, morality is only ever effective on a consensus basis.  Where it then proceeds to interface with politics, it becomes politically potent.  Manning, like all whistle-blowers, was motivated in her political subversion by her conscience.  Well, his conscience, back then.

So to Charlie's comment.  If she ever has explained the moral basis of her behaviour online, I haven't seen that reported here, so that's what I'm looking forward to.

by Dennis Frank on September 02, 2018
Dennis Frank

This was good to see: "New Zealand needs Chelsea Manning – and others like her".  A dual opinion from Craig Tuck, human rights lawyer & criminal justice specialist, and Dr Thomas Harré, specialist in transnational criminal law.

Craig "is trained in psychology and law, with a masters in criminology from Cambridge University. His work in human trafficking has received commendations from the UN.” Thomas "combines legal practice with academic research, has published and presented widely – including advice on issues of forced labour and human trafficking in New Zealand and throughout Southeast Asia."  https://www.radionz.co.nz/news/on-the-inside/365234/opinion-new-zealand-...

Excerpt:  "There is no principled basis for opposing Ms Manning's visa on the basis of her conviction. Indeed, one can ask whether the National Party would also have opposed Nelson Mandela from speaking in New Zealand in 1995. What about the string of rock stars and others with convictions given visas?  History is resplendent with examples of people breaking laws that were later found to be unjust, designed to enable the powerful against the powerless - or simply irrational."

by Megan Pledger on September 21, 2018
Megan Pledger

@Lee

You said "Authentic child pornography involves a criminal sexual act on a non-consenting party. "

Child pornography is child ponography whether the child consents or not.   And the use of the term authentic is really the wrong word here - I'd prefer "reality based".  Authentic has a different meaning depending on the context of the person reading it.  

Virtual child pornography is harmful because it's like advertising for the "real" thing.  And because virtual child pornography doesn't have to coform to the laws of biology and physics then it can be more extreme or impossible and incite people to want more extreme things from real children.  

You said "Distributing media portraying the act amounts to re-victimization and/or participation in a crime and should be censored on those grounds."  Distributing media also means that a market is set up with all the common business aparatus -  people make profits out of other people's harm right across the supply chain - that's another reason it should be censored.  


Post new comment

You must be logged in to post a comment.