Free speech is a delicate flower

02:56, Apr 09 2012

It is trite to extol freedom of expression as being a right that is fundamental or the first freedom in any just society.

Such an essential right, free speech has surprisingly recent origins as a feature of our legal framework.

For many centuries, English law  from which much of our law is derived  provided that any person who disparaged the King could be hauled before a special court known as the Star Chamber.

The censorship powers of the Star Chamber grew and it eventually took for itself the right to approve all literature for publication.

In 1632, the court even issued an outright ban on all ``news books'' that lasted for six years.

Being an inquisitorial body, Star Chamber defendants did not enjoy the procedural safeguards of the common law courts.


There were no juries, no witnesses, and no appeals against its verdicts. Its sessions were held in secrecy.

Unsurprisingly, the Star Chamber became a hated symbol of royal power. In its confrontation with Charles I, Parliament abolished the Star Chamber in 1640.

This was more a strike against the King than a blow for freedom of expression, however.

Parliament soon restored pre-publication censorship via the Licensing Act of 1643.

Freedom of expression did not really gain traction until the so-called Glorious Revolution of 1688 against James II.
 Ironically enough, the revolt was triggered by Parliamentary opposition to the King's proposed tolerance for religious minorities and dissenters. Nevertheless, the curtailing of monarchical powers in the aftermath of Parliament's  Leg 2triumph was to prove a boon for free speech.

In a new era of constitutional government, it was thought inappropriate for the state to continue controlling the free exchange of ideas.

The freedom to disparage the king was soon added to the corpus of rights considered to be the privilege of freeborn Englishmen and the licensing order was allowed to lapse in 1694.

With time, that freedom was transmitted throughout the British Isles and was carried over to British possessions in North America, Australia and, in 1840, New Zealand.

The foregoing little history recitation emphasises that the right to free expression is not that long-lived. Compared to some, such as those embodied in the Magna Carta of 1215, it is almost a novelty.

It may even be considered a fleeting novelty at that, given recent developments in other parts of the English speaking world.

Canada has for several decades intrusively regulated speech on sensitive issues such as multiculturalism and religion.

The bodies doing the regulation are so-called ``human rights tribunals'' whose powers and procedures are actually not unlike the old Star Chamber.

There are very few procedural safeguards for defendants and the tribunals have in the past imposed lifetime speech bans and taken the totalitarian step of ordering forced apologies.

Australia may be headed down the same path. Last year, broadcaster Andrew Bolt was convicted of racial vilification for arguing that some people with tenuous links to Aboriginal culture were so identifying for political and pecuniary purposes.

The federal government has recently held a review which has suggested drastic tightening of government control of the media.

Freedom of expression has been most undermined, however, in Britain. There are literally thousands of examples of Her Majesty's constabulary policing the manners of her subjects.

An 11-year-old was prosecuted for calling another boy a ``Paki'' and other unpleasant names.

A 14-year-old was arrested and fingerprinted for asking her teacher to put her with another group because the rest of her group spoke Urdu.

A 21-year-old was recently been sent to jail for tweeting a nasty comment about a black football player.

The British police, so reluctant to intervene in the midst of the rampant property destruction of last year's riots, have seen fit to place undercover detectives in ethnic restaurants to arrest patrons who order ``flied lice''.

A man was even arrested in the Isle of Wight for singing Kung Fu Fighting at a karaoke bar.

One wag put it thus: ``In Britain everything is policed except crime.''

If only that were true. The fact is that under laws like section 5 of the UK Public Order Act 1986, it is a crime to use ``insulting words''  and that's the problem.

British MP Dominic Raab recently discovered that the police invoked section five 18,249 times in 2009 alone.

We often like to think of New Zealand as being an exceptional place and, in this regard, it seems we are.

There are few limitations on what you can say or write here.

If you slander or libel someone you may face civil liability for defamation and you may not incite crimes or publish obscenity, but our police will not call in at your doorstep to question your views on the issues of the day.

* Liam Hehir is a lawyer at Fitzherbert Rowe in Palmerston North.

 Leg 5

Manawatu Standard