At first blush the censorship of the Christchurch killer's document explaining the attacks may look like a serious intrusion on free speech. But context and content are everything

The Chief Censor, David Shanks, has ruled The Great Replacement, supposedly the manifesto of the Christchurch terrorist, to be an objectionable piece of work. Accordingly, it is an offence for any person to possess, copy or distribute the work in New Zealand. This has led to dismay on the part of some free speech advocates who, while not endorsing the shooter’s sentiments, take a highly principled approach to such matters. 

In this case, however, it may pay to think again.

I have not read the manifesto which, since it is banned, means that I guess I never will. However, it is my working assumption that the tract is (at least in part) a handbook exhorting readers to commit specific crimes. We know, from official statements, that it includes suggestions of other places to attack and an argument to justify the murder of children.

Such works are not, and never have been, forms of expression considered worthy of protection by the law.  

The liberty to say what you want is a foundational liberty in that it is a necessary precondition of the other freedoms we cherish. It is to hold a privileged place in our legal system, therefore, and we should generally be deferential to its concerns. But liberty is not the same thing as an absolute licence, however, and nearly all liberal thinkers have recognised the need for some restraints on what people say.

Laws against (or providing remedies against) defamationchild pornography, leaking classified information, copyright violation and perjury are all recognised as justifiable restraints on the freedom to say what one pleases. Incitement to crime is another example.

In none of those cases are we talking about the suppression of ideas per se. 

It may be clarifying to use an analogy here. Let’s say I form the political opinion that theft is not morally wrong and should be legalised. It would be a wrongful view, but one that I am permitted to hold and propagate the opinion in a free society (absurd as it is)It would be a different thing altogether for me to create a publication setting out the best methods for burglary while encouraging people to rob specific houses and shops with detailed instructions as to how to pull the jobs off. 

Nobody who has considered matters carefully really believes that freedom of speech is absolute. That this obvious fact is often cited to rationalise political censorship by the authoritarian at heart is frustrating. When it comes to this document however, I seriously doubt the work has been banned due to its political content (as abhorrent as that is).

I get why freedom of speech proponents have instinctively blanched at the Chief Censor’s news. That was my initial reaction too.

However, if anything may be suppressed in a free society then surely a practical instruction manual for murder and terrorism is a worthy candidate. 

Comments (32)

by Rex Ahdar on March 24, 2019
Rex Ahdar

There are many selected fragments and excerpts that one can find online from newspapers, bloggers and so on. From that I tentatively infer that it is more than an instruction manual for would-be homicidal nutters with a grudge against particular groups. There are plenty of references to political figures, governments, global movements, ideologies, "isms" of various stripes, and so on. I would guess (I can only guess) that the vast majority of its 70-odd pages is a commentary/ diatribe upon ideas and the protagonists of beliefs. He describes himself as an "Ethno-nationalist Eco-fascist", an admirer of the PRC, Candace Owens and, for all I know, Rolf Harris. I do not think the Chief Censor ought to have banned it. But he knows better than you and me.  Perhaps, if I wanted to, I could satisfy the exception and secure a copy of the publication for legitimate purposes, as reporters, researchers and academics may do.  Perhaps. It' s busy year what with two World Cups etc.

by Ross on March 24, 2019
Ross

if anything may be suppressed in a free society then surely a practical instruction manual for murder and terrorism is a worthy candidate. 

But you don’t know if it is a “practical instruction manual for murder and terrorism” as you presumably haven’t read it. The Sydney Morning Herald has, and it’s not at all clear that it is how you describe it.

https://www.smh.com.au/world/oceania/christchurch-shooter-s-manifesto-reveals-an-obsession-with-white-supremacy-over-muslims-20190315-p514ko.html

What the Unabomber did was appalling. What Pol Pot and the Khmer Rouge did was appalling. Yet we haven’t banned the writings and ideologies of the Unabomber or the Khmer Rouge. Alas, I suspect that David Shanks has banned Mr Tarrant’s manifesto because it’s the politically correct thing to do. It didn’t take much courage to do what Shanks has done. It would’ve taken far greater courage to publish the manifesto, and to debate its contents.

https://www.washingtonpost.com/wp-srv/national/longterm/unabomber/manifesto.text.htm?noredirect=on

http://www.mekong.net/cambodia/redbook.htm

by Simon Connell on March 25, 2019
Simon Connell

A press release re: the decision on the manifesto can be found here (as well as a link to an exemption form, and as it turns out a formal application costs $102.20), and contains the following, which is consistent with what you're arguing here:

“It promotes, encourages and justifies acts of murder and terrorist violence against identified groups of people, ” says [Chief Censor] Mr Shanks.

“It identifies specific places for potential attack in New Zealand, and refers to the means by which other types of attack may be carried out. It contains justifications for acts of tremendous cruelty, such as the deliberate killing of children.”

A key part of the test for being objectionable is that something is injurious to the public good. I think the argument for classifying as objectionable a document that provides a sort of blueprint for a terrorist attack is stronger than the argument for a document that just contains general incitements.

by Tim Watkin on March 25, 2019
Tim Watkin

Here's a question for all the lawyers in and around this post... Could Shanks have just suppressed/redacted the few lines that dealt with specific threats and calls to action and left the rest uncensored? Did it have to be all or nothing?

by Tim Watkin on March 25, 2019
Tim Watkin

Just to clarify, as someone who has read it, there are what might be labelled 'calls to action' in there and justifications that encourage people to act in a similarly murderous manner. Obviously injurious to the public good. But that is literally only a few lines. Most of it relates to ideas, beliefs and a messed up view of history and politics.

by Pat on March 25, 2019
Pat

As always timing is everything...and at the moment the chief censor has probably made the right call....it isnt however a licence to censor all and sundry, which I am sure is well understood.

 

by Andrew Geddis on March 25, 2019
Andrew Geddis

@Tim,

First of all, brave of you to admit to committing this offence

But in answer to your "couldn't he just excise the bad bits?" question ... no. The Chief Censor can't do this. He can only classify an entire "publication" as it stands (i.e. he can't say "these bits in it are objectionable, but the rest is OK, so take them out and there's no problem").

However!!! It would be interesting to see what would happen if someone were to go overseas, get a copy of the manifesto whilst over there (thereby avoiding any liability issues under the FVPCA), excise the "bad bits" that call for similar actions and threaten specific targets and so create a "clean" version of the manifesto, then present it to the Chief Censor for a new classification. Because it's hard to see how "ideas, beliefs and a messed up view of history and politics" alone can be "objectionable" in terms of the legislation.

by Liam Hehir on March 25, 2019
Liam Hehir

Quite so. And this is a key distinction between a work like, Mein Kampf and, day, the Anarchists cookbook. I know that some aspects of the law have territorial effect, so that it’s illegal for NZers to access some objectionable material even when they are outside the realm - however, I don’t think that extends to all classes of objectionable material.

by Tim Watkin on March 25, 2019
Tim Watkin

Thanks gents. To all officers of the law reading this, I'd like to stress that I wrote 'read', as in past tense. As in before it was deemed objectionable. (Thanks Andrew!).

by Liam Hehir on March 25, 2019
Liam Hehir

As the only actual lawyer in this thread I need to point out that the following is not individualised legal advice: that’s not how it works. The Chief Censor has found that it’s objectionable but that means it always was.  So it was always an offence to possess it, whether you knew it was objectionable or not. Our censorship laws are very weird like that and I have heard some absolutely hair raising stories about people who have been dragged through it through the unwitting possession of objectionable materials.

 

by Lee Churchman on March 26, 2019
Lee Churchman

I don't think it should have been censored. Perhaps there would have been a case before the event for censoring it, but the context has now changed. Many New Zealanders, like Tim, will want to read it for the same reason many Norwegians wanted to read Breivik's manifesto: to try to understand why this happened, and that's a good thing I think. To be honest, I didn't read it, but I expect it will be fairly boring. 

I don't buy the argument that it will necessarily cause copycat strikes, because that hasn't been proven and correlation isn't causation. 

by Liam Hehir on March 26, 2019
Liam Hehir

What people seem to be overlooking, quite consistently, is that there are really no grounds for censoring something on the basis of its political content (however bad it is). Mein Kampf is an evil book. It incites hatred and it arguably lays out Adolf Hitler's ultimately murderous intentions. But it does not call for imminent lawless action. It is my assumption - and the nature of that assumption is set out above - that this terrorist's text crosses that line.

by Lee Churchman on March 26, 2019
Lee Churchman

But it does not call for imminent lawless action.

Well, I can think of a number of books, including Abbie Hoffman's, which call for imminent lawless action, but as far as I am aware you can freely buy most of them in New Zealand or at least access online versions. For example, feminists say that some of the 'pick up artist' stuff is more or less a rape manual. 

I would also argue that the distinction between theoretical/political content and calls for action is vague. Marx, for instance, is clear that his work is supposed to inspire action and I can think of a few people I know who have been radicalised by writers like Franz Fanon. 

But surely its unreasonable to ban things just because they call for unlawful action. There are other moral principles in play as well as the question of how likely the call to violence is to be heeded. 

Mind you, I'm firmly of the opinion that nobody over 45 should be making laws or decisions about internet or digital content (that includes me). 

by Liam Hehir on March 26, 2019
Liam Hehir

Calling for lawless action or advocating the use of force at some indefinite time in the future is one thing. Calling for imminent and specific acts is quite another. Whether or not that's in the mannifesto in places is something about which I am not sure.

by Simon Connell on March 26, 2019
Simon Connell

So my comment above:

A key part of the test for being objectionable is that something is injurious to the public good.

is a bit wrong.

A publication is normally objectionable if it satisfies the following definition:

it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.

But, a publication is deemed to be objectionable (ie you don't need to also satisfy the  definition above) if it "promotes or supports, or tends to promote or support" (emphasis added):

(a) the exploitation of children, or young persons, or both, for sexual purposes; or
(b) the use of violence or coercion to compel any person to participate in, or submit to, sexual conduct; or
(c) sexual conduct with or upon the body of a dead person; or
(d) the use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct; or
(e) bestiality; or
(f) acts of torture or the infliction of extreme violence or extreme cruelty.

There are a few different discussions going on here (and elsewhere) at the moment. One question is whether or not the censor was right to classify the manifesto as objectionable under our current censorship laws. Another is whether it would be censored under some ideal version of censorship laws, which leads to the question of whether or current censorship laws are under- or over- inclusive or otherwise need change.

by Lee Churchman on March 26, 2019
Lee Churchman

@Liam

Calling for imminent and specific acts is quite another. Whether or not that's in the manifesto in places is something about which I am not sure.

Fair enough, but doesn't that sort of add to the point. The people who would read this will generally be like Tim–they want to see why in the perpetrator's own words. I think that's legitimate and important, as it was in the case of Marc Lepine.

@Simon

(f) acts of torture or the infliction of extreme violence or extreme cruelty.

I guess GTA V should be banned then, even though the torture in that is making a specific and very important political point (which has sailed over the heads of many reviewers). 

by Liam Hehir on March 26, 2019
Liam Hehir

We only have assumptions to work on, which gets to the heart of the problem here. 

I'll just note this section 3(3): "In determining... whether or not any publication... is objectionable... particular weight shall be given to the extent and degree to which, and the manner in which, the publication... promotes or encourages criminal acts or acts of terrorism..."

 

by Simon Connell on March 26, 2019
Simon Connell

@Lee the question is not whether the publication depicts torture, but whether it "promotes or supports, or tends to promote or support" it.

@Liam if I'm reading the section correctly, then if a publication promotes or supports acts of extreme violence or cruelty, then it's deemed to be objectionable under s 3(2) bypassing the need to consider s 3(1) in light of s 3(3)-(4).

by Lee Churchman on March 26, 2019
Lee Churchman

@Lee the question is not whether the publication depicts torture, but whether it "promotes or supports, or tends to promote or support" it.

OK. I see. 

by Dennis Frank on March 26, 2019
Dennis Frank

I haven't seen the chief censor prove the manifesto incites adherents of the shooter's belief system to commit violence.  I question his presumption that the public doesn't need or deserve any citation as evidence that he made the right decision.  Seems a tad paternalistic.

I note that Graeme Edgeler has posted a dissenting opinion on Legal Beagle.  Could the FSM use our free speech legislation to prosecute the censor?  Sorry, just an idle thought.  But if they could, I suspect they'd call him as supportive witness.

I also wondered if our government discerns a public interest in testing our hate-speech legislation via the manifesto.  Correct me if I'm wrong, but I gather it has yet to be tested.  I don't see the point of a hate-speech law that doesn't get used.  Presuming the government prosecutor can access a digital file of the manifesto, I see merit in using any incitement to violence therein as evidence in court, to establish case-law precedent.  That would stop copycats, eh?

by Ross on March 26, 2019
Ross

The Office of Film and Literature Classification is subject to the Official Information Act. If a requestor made a request for the manifesto (and specifically requested that any parts inciting violence be removed), would they be entitled to receive a copy? 

by Liam Hehir on March 26, 2019
Liam Hehir

Since I have not read the publication, I freely concede that the restrictions placed upon it may not be justified as a matter of fact and law. For his part, Edgeler (who also hasn’t read the text) concedes that the decision could be correct in terms of its being objectionable, at least in terms of availability to the general public.

My point is that, if the document is as reported, it is possible that the decision was a reasonable one.

To be clear, I do not generally throw in with those who are celebrating the decision on the basis that it’s a worthy thing to censor the evil political ideas of the author.

by Lee Churchman on March 27, 2019
Lee Churchman

I question his presumption that the public doesn't need or deserve any citation as evidence that he made the right decision.  Seems a tad paternalistic.

Very. Why should journalists be allowed to read it and not me? Wasn't Cameron Slater found to be a journalist by the courts? If I start a blog, can I then read it?

I think there would be a case for restricting it prior to the event, but not after. Our country was attacked and New Zealanders deserve to be able to find out why... for themselves. The best way of finding out would be for people to read the killer's own justification. There's no direct proof that making it available will cause more violence–that's just speculation.

NZ has a pretty poor record for censorship. Perhaps the worst is the censor making it illegal for men and women to watch the film version of Joyce's Ulysses together (I remember that some critic wrote to the paper pointing out that this wouldn't stop two gays from watching it together). I think this case will look pretty bad 10 years from now. 

What's the point anyway? Anyone with rudimentary knowledge of the internet will be able to find it (and the video), and it's unlikely that they'll be caught. 

by Dennis Frank on March 27, 2019
Dennis Frank

Yes, Lee, I recall seeing Ulysses in gender-segregation.  Still at college then, my reaction was along the lines `people think this wierd crap is good??'  But recalling that media report of the Chch massacre which mentioned the reason so few females died is because they aren't allowed to pray with males.  They were in an adjacent room which the shooter was unaware of apparently.

 Jews also do gender-segregation. Sobering to think that christian morality still controlled us likewise a mere half-century ago.  Social progress is real hard for humans - while technological progress is relatively easy.

Re the why of the attack, the accusation of white supremacist racism requires validation.  Suppressing the evidence defeats that.  Some will point to circumstantial evidence supporting the notion, but proof is better.

by Alan Johnstone on March 27, 2019
Alan Johnstone

Flawed premise, it's not possible to censor this document, it was published on the internet and it's there forever to anyone who wants to read it.

There's nothing the NZ state can do to alter this fact, and playing whack-a-mole is pointless. If someone is motivated to read the document, they will.

Enforcement efforts to supress it will fade over time. It's like the Breivik document.

by Liam Hehir on March 27, 2019
Liam Hehir

You could say the same thing about any material on the Internet. However, in view of the Censor's ruling, I can tell you that I will not be accessing it because I generally don't wish to break the law.

I cannot say I would have read it without the ban, necessarily, but I would not have ruled it out.

by Simon Connell on March 27, 2019
Simon Connell

@Lee

What's the point anyway? Anyone with rudimentary knowledge of the internet will be able to find it (and the video), and it's unlikely that they'll be caught. 

and @Alan

Flawed premise, it's not possible to censor this document, it was published on the internet and it's there forever to anyone who wants to read it.

Our classification statute is not premised on the idea that it's setting up complete state control over citizens' access to publications - and I'm glad that that's the case. Rather, it sets out some rules that we are supposed to follow (including don't possess or distribute objectionable material) and provides consequences for those that don't follow the rules.

Like Liam, I'm generally law-abiding and don't plan to access the material (unless for some reason I want to look at it for work in which case I'd apply for an exemption). But I might have if it had not been classified objectionable.

by Dennis Frank on March 27, 2019
Dennis Frank

I haven't wanted to read it myself - I've been sensitive to the contaminating effect of evil intentions since I was a child.  However I would like to see relevant sections quoted in the media & public debate, to facilitate appropriate public policy re prosecution for hate crimes. 

My concern is that leaving it to the justice system is insufficient.  Representative democracy is evolving towards participatory democracy.  That requires an informed citizenry.  Legislators need to be able to tweak law when public discontent with it becomes consensual.

I think the potential for copycat hate crimes is the hinge.  Arguably, the Charlie Hebdo massacre got the white supremacists thinking that islamic terrorism needs a reciprocal response.  The power of tit-for-tat was made famous in Axelrod's The Evolution of Cooperation (credited in the foreign policy establishment for playing the crucial part in getting Reagan's reciprocity with Gorbachev to end the Cold War).  Game theory was combined with a multi-competitor tournament to identify the best design.

We know from the Middle East that eye-for-an-eye traditional retaliation keeps the cycle of violence in continual escalation.  Better to eliminate the incentive structure that drives the behaviour, but eliminating ease of repetition is a good first step.  We really do need citations from the manifesto to prove the white supremacist thesis and viability for prosecution using the hate-speech law.

by Lee Churchman on March 28, 2019
Lee Churchman

I can tell you that I will not be accessing it because I generally don't wish to break the law.

Fair enough. I guess I tend to restrict my view of the NZ government to its authority over meatspace. 

by Charlie on March 29, 2019
Charlie

I had a cursory glance through it before it was banned: It is the disjointed ramblings of a nutter. Nothing more.

If we're to have a Chief Censor decide what we may or may not read, why are Mein Kampf, Das Kapital and Rules for Radicals still on the shelves?

All three are infinitely more dangerous to us all.

 

 

by Liam Hehir on March 29, 2019
Liam Hehir

None of those things call for the imminent commission of violent crimes.

by Danyl Strype on April 10, 2019
Danyl Strype
The Chief Censor had to make a decision within the legal framework that defines the responsibilities and powers of his office. It's not for him to understand or judge whether or not his decision would make the work in question more or less likely to be distributed online. But I note that nobody seems to have mentioned the 'Streisand Effect' in relation to the classification of the mosque shooter's manifesto as "objectionable". It seems obvious to me that attempts to suppress the manifesto will only increase the interest in reading and distributing it, not only because it makes it "forbidden fruit", but because it makes doing so an act of civil disobedience. Both for the fringe minority that sympathize with its contents, for a much larger pool of cyber-libertarians who object on principle to censorship and believe that sunlight is the best disinfectant, as well as the online outlaws who just like using the net to thumb their noses at those in authority and disobey them for its own sake.

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