Won't someone PLEASE think of the children?

Just how dangerous can a book be? And in order to combat that danger, how far should our expressive freedoms be restrained?

The young adult's novel, Into the River, certainly seems to divide folks. I should note at the outset that while some unkind souls may say that I behave as if I'm smack in the middle of the book's target demographic market, I haven't read it. But from the reviews, it certainly sounds like something I'd have liked to have read when I was back in High School.

And for the judges at the 2013 Childrens' Book Awards it was "the book that stood out for us", being "a book that both engaged and respected older readers, with material as subtle as it is honest and provocative". They awarded it the Book of the Year title.

But to the Films, Videos and Publications Review Board, its explicit sexual content and drug use was far too dangerous for young eyes to see. So they imposed an R14 classification on it - making it a serious offence (jail for up to 3 months, or a $10,000 fine) to give the book to anyone younger than 14. 

That decision seemed a bit daft to a lot of people, given that Into the River deals with the lives of thirteen-and-fourteen years olds and so may well speak to just that age group. So the book was put back before the Office of Film and Literature Classification to see if it could be reclassified. And that Office agreed to do so - lifting the R14 restriction and thus making it legal for anyone in New Zealand to read it, or to give it to anyone else in New Zealand to read.

At least for a while. Because after the Office made its decision, Family First - which appears to view this book as the spiritual equivalent of the videotape in Ringu - appealed it back to the Films, Videos and Publications Review Board. Which, you may remember, was the body that originally imposed the R14 rating on it.

And now that body's president, Dr Don Mathieson, has slapped an interim restriction order on Into the River, which has the effect of preventing anyone from lending, selling or giving the book to anyone else ... but not making it illegal to possess it. Meaning that (for now) the book is even more tightly controlled than it was back before the Office lifted the R14 classification.

All of which quite reasonably has folks like Danyl Mclauchlan in a bit of a confused spin - so much so that he's reduced to asking for "a lawyer’s explanation" of what is going on. Bless. Here's some thoughts in response.

First up, the Board's president, can issue the order (in effect) prohibiting dissemination of Into the River until the appeal against its classification status is resolved - but only if he is "satisfied that it is in the public interest to do so". There's a few questions to ask about his decision that this criteria is met in the case of Into the River.

First of all, according to this Simon Collins story, it is the first time such an order has been made under the legislation. That doesn't in itself mean the order is wrong - something has to be the first thing subject to it. But it still makes you think that the case for issuing the order must have been remarkably strong as compared to all the other times orders have been refused.

Second, before making such an order, the President ought to have very carefully weighed its effect on the NZ Bill of Rights' guaranteed freedom of expression. Because the order is of a sweeping nature - it stops everyone from being able to access this book until the Board can review its classification status. Even people whom the book cannot possibly corrupt or injure ... grown adults like you or me. 

What, then, is the possible injury that justifies this extraordinary sweeping restraint on expression? That in the period up until the Board reviews the classification decision, some young adults that the Board may (and note this - only may) decide shouldn't get to read it will be given it to read? How bad is that possible outcome, especially as the Board could well conclude that those young adults ought to be permitted to access the book in any case?

At the least, it would be very interesting for someone to request that Dr Mathieson release his reasoning as to why "the public interest" required that everyone in New Zealand be prevented from engaging in their legislatively guaranteed right to lend, sell or give the book to anyone else. And note that the Official Information Act is not limited to reasons that are written down - even if no formal record of the decision was made (which would likely breach the Public Records Act), you still have a right to have that information made available.

Third, there is the problem that the president already has seen Into the River and expressed his views on it. And those views were ... not positive:

... the chairman of the board of review, Dr Don Mathieson held serious reservations and would have preferred the book to have had an R18 rating.

Mathieson asked that his "dissenting opinion" be posted on the Department of Internal Affairs website with the board decision.

One of Mathieson's concerns is that the book portrays sex with a 13- or 14-year-old as normal.

"It is injurious to the public good to normalise, as the book does, sexual intercourse by young teenagers," he said. 

"Into the River also portrays girls as all too ready for sexual activity. Drug-taking is also presented as the kind of thing that a modern young teenager does; if you don't do it, it is likely you will be disapproved by your schoolmates.

"The book is full of language that is highly offensive to the public in general."

(The full version of Dr Mathieson's views on Into the River is here.)

Now that same person has decided that it is "in the public interest" that the book he previously thought shouldn't be read by anyone under 18 ought not to be leant, sold or given by anyone in New Zealand to anyone in New Zealand until he gets to look at it again and decide how it should be classified. That's a bit problematic, because an informed observer might well think that his decision to issue the interim restriction order reflected his pre-existing views of the book's merits rather than a considered decision on whether it was "in the public interest" for it to be freely available until the Board heard the appeal on its classification.

(I note that this need not be the case in fact - and I'm certainly not accusing Dr Mathieson QC of exhibiting actual bias in his decision. But the existence of his previous condemnation of the book's qualities may raise a question of apparent bias - which is to say:

A decision-maker is disqualified from making the decision when a fair-minded lay observer might reasonably apprehend that the decision- maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide. 

And that is all.)

So, yeah - this interim restriction order decision looks at least a bit questionable. And perhaps if it ever got before a court, the court would overturn it. Or, alternatively, Dr Mathieson could be asked to rescind it himself. But that likely won't happen, because the order in question lasts only until the Board decides the appeal against the reclassification decision ... which apparently "may very well be at the end of this month". 

Which will be a very interesting decision to see. Looking from the outside, there seems to be a bit of an arm wrestle going on between the Office of Classification (which makes the first-up call on the book) and the Review Board (with Dr Mathieson at its head). So I wonder if the appeal will produce the same result as the first time the Review Board looked at Into the River - a tighter classification than the original censor thought necessary.

And if that is the case, what odds on the High Court being asked to review the reviewers?

[Update: Everyone should go and read Graeme Edgeler's far more sophisticated analysis of this decision here.]