How do you solve a problem like Chelsea?

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.