Strengthening Resilience to Disinformation – A Solution

This post appeared in a very slightly different form on my substack site “A Halflings View”

I have been referred to a webpage from the Department of Prime Minister and Cabinet. I have adapted the heading to the page as the title for this post.

The webpage starts:

“The way that people access and consume information has radically changed in the last few decades. The ease and speed of access to digitised information has come with numerous benefits. However, these technologies can be used in ways that cause harm. Where individuals or groups communicate to shape public perception in ways that may be manipulative, deceptive or misleading, this can be referred to as ‘disinformation’.”

It goes on to note that the effects of disinformation and misinformation are of concern to New Zealanders and those concerns are high on the list of national security threats people felt would likely occur in both the short and long term.

The message advises that

“The Government is seeking to support a “whole-of-society” approach to build understanding and resilience against the harms of disinformation, that can be led primarily by those outside government. This approach recognises the need to maintain an open internet and uphold the right to freedom of expression.”

Three initiatives are proposed

1.   Convening a “civil society-led group” to scope longer-term work

2.   Working to design a one-off fund to  support community projects and organisations in helping to build New Zealand’s resilience and capacity to respond to disinformation.

3.   Commissioning public research and analysis into the problem.

What is the purpose of this? The Request for Proposal (RFP) states as follows:

“The government is seeking to support a “whole-of-society” approach to build understanding and resilience against the harms of disinformation, that can be led primarily by those outside government. This approach includes commissioning reporting to build a transparent empirical foundation for any policy response; enhancing community capacity and capability outside of government; and promoting civil society leadership.”

It should be remembered that it was the same Department that in 2020 suggested that

“Ideally efforts to counter mis/disinformation should be led outside of government by the media, civil society, NGOs, academia and the private sector. Several leading academics, research organisations such as Te Pūnaha Matatini, and other organisations such as Netsafe and InternetNZ have already been very active, and we are exploring how to support them and lift their capacity in this work.

Oversight of mis/disinformation is a sensitive issue, as any public commentary or perceived control of a ‘counter-disinformation effort’ can reinforce conspiracy meta-narratives about state manipulation of information and give legitimacy to those claiming an erosion of free speech. For this reason, we would not recommend formal allocation of disinformation responsibilities or the identification of a government spokesperson. A group of relevant Ministers with whom significant issues can be highlighted and public communications approaches approved will, however, be important to ensure appropriate proactive oversight of official activity in this area”

One can only speculate that the current proposals are yet another example of the State “distancing” itself – at least as far as public perception is concerned – from interference with matters of expression whilst at the same time driving, indirectly, the campaign against disinformation.

And what is seen as the final outcome? The RFP states:

“The reporting produced as a result of this RFP is intended to be released publicly. DPMC is aware that this kind of work is a matter of evolving best practice, and while we will scrutinise proposed solutions carefully, we are realistic about the need to support a developing community of local practitioners.”

There are a few issues that arise out of these proposals.

1.   The opportunity for citizens or groups to put their names forward to help is obscure. It is located on the Government tender page. I would have thought that there would be a link but there is not. Input is not sought from individuals. A certain level of organisation and structure is required of applicants. Institutions are clearly the target. I would suggest that  at the end of the day the “civil society-led group” will probably be appointees which will probably include well-known groups who frequently appear in the “Disinformation” space. Outcomes in such a situation become predictable.

It should be remembered that in its paper “Dangerous speech, misogyny, and democracy: A review of the impacts of dangerous speech since the end of the Parliament Protest” (August 2022) the Disinformation Project recommended:

The establishment of a transparent, outside government entity to provide research, analysis and advice for communities, civil society organisations, agencies and independent crown authorities on information disorders and their impacts in Aotearoa New Zealand.

I suggested that this recommendation was clearly a pitch by the Project to be an “outside of government” entity. As I observed – the best way to get a job is to suggest that there is a need for it.

When one reads through the Request for Proposal (RFP) documents it becomes clear that the Disinformation Project will be a likely appointee.

2.   At no time – and indeed throughout the whole campaign against disinformation- have any concrete examples of disinformation been provided. Rather the all-embracing catch-words of dis and misinformation and conspiracy theories are flung about without any clear examples. It would be helpful to have examples rather than the use of buzz-words like hate speech, misogyny and the rhetoric that emerges from the Disinformation Project.

3.   Although the terms misinformation and disinformation are defined (on the definition of disinformation see the next item) there is ample scope for “mission creep”. The RFP states

“This RFP is primarily focused on disinformation, but acknowledges that reporting may cover a wider spectrum of false and misleading information.”

4.   There is in fact a very simple solution to the “disinformation problem”. It works like this. Let us start with the definition advanced by the DPMC

“Disinformation is false or modified information knowingly and deliberately shared to cause harm or achieve a broader aim.”

Let’s cut through the rubbish of bureaucrat-speak (There is the Plain Language Act 2022 statute on the books but reading the RFP one would not know it) The Plain Language word for disinformation is lies. Call it for what it is.

The business about sharing knowingly or deliberately adds nothing. Information is passive unless it is published. The same is the case with disinformation. It is axiomatic it should be shared. Otherwise it is neither information nor disinformation

What is the antidote and antithesis of lies – the truth. John 8:31, writing in another context, made it clear – “the Truth will set you free”. That is how you “strengthen resilience to disinformation.”

Rather than engage in a complex bureaucratic process – for that is what is envisaged – simply use counter-speech (advocated by Nadine Strossen in her recent visit to New Zealand) to address the lies and counter lies with plain unvarnished truth.

Sadly however I think the agenda may go deeper than merely countering disinformation and reference is made in the opening statement to the use of information technologies as a means of disseminating disinformation.

My concern is that this is a covert attempt to regulate the means of distribution of information – a blunt instrument approach to a subtle and nuanced problem.

Certainly that is what has been advocated in some of the papers released by the Disinformation Project.  

In its RFP the DPMC states

“The protection and promotion of human rights, including freedom of expression, a diverse range of views, and rights to privacy, are critical to this work programme. Any solutions must proactively incorporate structures and safeguards designed to build public trust and confidence and enable robust testing of data collection, analysis, and conclusions.”

This is encouraging. In addition the RFP states:

“We do not want solutions oriented toward intervention in disinformation, reporting particular instances of disinformation to platforms or governments, or censorship.”

The ultimate goal is stated to understand the problem of disinformation in New Zealand, to continue that understanding, to encourage future reporting, to maintain independence of reporting from Government and to confine the scope of the work to monitoring the problem and insights into it.

In the final analysis the target of this proposal is the transmission of information. It must always be a matter of concern when the State involves itself in this activity. We already have significant regulation of the means of communication of information (radio and TV licences as examples) and a means of managing and controlling content (the Classification Office and the Broadcasting Standards Authority as examples).

Because “disinformation” is acknowledged to be a problem occurring mainly in the digital space – the Internet which is largely unregulated – it seems to me that understanding the distribution of this form of content is a prelude to an attempt to regulate this means of distribution of information – hence my earlier expressed concern.

Watch this space.

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Elegant Argument and the Heckler’s Veto

I have written before about what I consider to be the decline of reasonable discourse. Certainly any hope for reasoned argument and a discussion about differences in opinion and point of view has gone out the window.

If anyone thought that the recent incident involving Kellie-Jay Keen-Minshull (aka Posie Parker) was unusual they are forgetful of earlier examples of shutting down disagreeable points of view. Massey University’s cancellation of Don Brash’s invitation to speak in 2018 provides one example although to be fair he later spoke at Massey in 2022.

Brash’s “cancellation” took place around the same time as the attempt by controversial Canadians Lauren Southern and Stefan Molyneux to speak publicly in Auckland at the Bruce Mason Theatre. They were denied that venue by Regional Facilities Auckland although the then Mayor Phil Goff did not hesitate to express his opposition to them using public facilities made available by the City Council. This refusal gave rise to litigation which went all the way to the Supreme Court – see Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138– where the approach by Regional Facilities was upheld.

From time to time controversial speakers visit our shores. Often their presence or their opportunity to express their views is challenged. In 2022 there were calls to cancel Jordan Peterson’s presentation in Auckland in 2022 by Auckland feminists and by transgender activist Shaneel Lal. Lal was one of the organisers of the what was described as a counter protest (it was in fact a protest) against Ms Keen-Minshull.

An attempt to seek a High Court decision to review the fact that Ms Keen-Minshull was permitted to enter the country was unsuccessful, notwithstanding sympathetic comments by the Judge hearing the application – see Auckland Pride v Minister of Immigration (Reasons Judgment 5 April 2023) [2023] NZHC 758. One of the concerns that was expressed by the applicants was that the extreme views expressed by Ms Keen-Minshull attracted conservative, far-right, white supremacist groups and that her presence might constitute a threat to public order.

That in fact came to pass. In one of what must be the most extreme examples of a cancellation or deplatforming of a person who was entitled to express a point of view, Ms Keen-Minshull was set upon and allegedly assaulted by one of the protesters present. This cancellation was subsequently celebrated by Shaneel Lal.

There were people present who genuinely wanted to hear what Ms Keen-Minshull was going to say and who had a right to receive the information imparted albeit that information may have been unacceptable. I am sure that Shaneel Lal as a law student, is acquainted with the provisions of section 14 of the New Zealand Bill of Rights Act 1990 which guarantees the freedom to seek, receive, and impart information and opinions of any kind in any form. He and the protesters not only cancelled Ms Keen-Minshull’s right to express and opinion but also cancelled the right of members of the audience to hear her opinion.

Another example of “official” cancellation may be seen in the withdrawal of a venue previously available to Julian Batchelor who faced threats of disruption from opponents of his position.

This trend of cancellation, deplatforming or “the heckler’s’veto” was considered by the Supreme Court. It noted that the “heckler’s veto describes the situation in which those wishing to exercise their free speech rights are prevented from doing so by actual or threatened protests, particularly threats of violence. (See Moncrieff-Spittle at para [93]. Although it could be suggested that there may be attendant health and safety issues arising from the exercise of free speech it may be that the cancellation of a venue hire agreement (as was the case in Moncrieff-Spittle) may be reasonable limit that could be justified in a free and democratic society. (Moncrieff-Spittle at para [101] and following.)

The Supreme Court was at pains to point out that every case had to be dealt with on its individual merits. The problem is whether or not every controversial speaker who comes to New Zealand will run the risk of threats of violence and disruption to such a degree that the authorities will not make venues available or the speaker is silenced by a level of violent and disruptive behaviour as was experienced by Ms. Keen-Minshull.

This does not bode well for the freedom of expression in New Zealand – where a vocal minority can shut down the expression of an opinion by one person and prevent the hearing of that expression of opinion by another.

However, this form of cancellation or deplatforming by threat is not the only way in which points of view may be silenced.

Recently Sean Plunket, an outspoken broadcaster who runs a show on the Platform was banned from Twitter. He was reinstated a few days later. I also know of a person who was banned from a discussion group (the organisation does not matter) although his posts were rational and polite. That person was asked to justify his position and have his continued participation in the group reassessed. He has since been reinstated.

It is acknowledged that platforms occupy a somewhat different position from Government organisations when it comes to freedom of expression, and in many cases rely on contractual terms to moderate content that may be permissible. But that said, a person who uses such a platform has an expectation of fair treatment. Rather than be deplatformed without a hearing, and then have to justify reinstatement (an interesting reversal of the traditional flow of proof burdens both civil and criminal where the accuser has the burden of proof).  My view is that a warning should issue advising that deplatforming is likely if the conduct complained of is continued. That at least could be the starting point of a dialogue where the accused person would have an opportunity to put his or her point of view (in law the principle is audi alteram partem – hear the other side – before reaching a decision).

This leads me to a theme which I have expressed before in other posts. Many of those opposed to a particular position would rather not debate it for fear of giving the oxygen of publicity to the opposed point of view. Rather those opponents would like to see the point of view remain unpublished or shut down entirely.

This runs contrary to the “marketplace of ideas” position which suggests that contending positions should be discussed and considered. If an idea has validity or is acceptable it will survive the debate. If it is invalid or unacceptable it will be dismissed or at best relegated to the margins.

But what is important in this process is that an idea, opinion or point of view should be properly and objectively debated. That debate should not involve emotive language, the use of “veto” words like racist, conspiracy theorist  or toxic. Rather, if an idea or opinion does contain elements of say, a conspiracy theory, identify the theory and explain why it is incorrect or wrong. Admittedly, many of those advancing a contrarian position (probably a better term than the emotive “conspiracy theory”) are monist in their approach. But while the person expressing the contrary opinion may not be convinced of the invalidity of the argument advanced, a member of the audience may be and in that way the marketplace of ideas succeeds.

The problem as I see it is that in the current climate rational and objective argument seems to be sidelined in favour of emotive outbursts, veto statements and cancellation behaviour.

My professional background has been in the environment of a highly structured approach to contending positions. In addition there are a number of fundamental rules underlying that approach. One side has an opportunity to put forward a proposition and produce evidence to support it. The other side has an opportunity to critique the evidence by way of cross-examination and put forward a contending point of view supported by evidence. The decision-maker may intervene in argument by questions or to test it in a Socratic manner. This process of argument, when done properly, has a high degree of elegance to it. Sadly it is too much to hope that it would be a characteristic of public debate.

There can be no doubt that the comments sections of the NZ Herald, Facebook, LinkedIn or Twitter itself are hardly venues for the level of debate that should take place in the marketplace of ideas. But in public fora a person should have the opportunity to put a point of view, stand ready to justify it and debate the rights and wrongs in an objective and rational manner. Heckling can often be amusing but is something of a distraction and in my view characterises the heckler as one who is not prepared to properly engage.

It is for good reason that the current trend of cancelling and deplatforming is called “the heckler’s veto”.

Withdrawing the “Hate Speech” Amendment

Earlier this week it was announced that the Govenment intended to withdraw the Human Rights (Religous) Amendment Bill. The Bill was designed to deal with what is generally referred to as “hate speech” against religous groups. The issue is now going to be referred to the Law Commission. The terms of reference for the Law Commission have yet to be released but I would imagine that they will be considerably wider than “hate speech” against religous groups.

I made a submission the the Select Committee on the Bill. I thought that I would make it available via this medium, given that I have earlier posted on the subject of “hate speech” and freedom of expression.

The submission follows:

Summary of the Argument

My starting point is that this amendment is problematic and should not proceed in its current form.

In summary I consider that the amendment constitutes an unjustified interference with the freedom of expression guaranteed under the New Zealand Bill of Rights Act 1990 (section 14) and the right of a person guaranteed under the New Zealand Bill of Rights Act 1990 (section 15) to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

In addition, I submit that the proposed amendment is unduly discriminatory for it protects those who have a religious belief. It offers no protection for those who do not have such belief but who have an ethical belief. To be consistent, if the Legislature wishes to protect belief systems (whether religious or otherwise) there should be protection for those who subscribe to ethical belief systems.

Thirdly I submit that if there is to be protection for those who practice religious or ethical beliefs, there should be an exception similar to that which appears in section 29J of the Public Order Act 1986 (United Kingdom).

There are also some definitional difficulties. “Religious belief” is not defined whereas in the principal Act ethical belief is clearly defined. My suggestion (which I shall develop in the submission) is that the term “religious belief” should be substituted with “faith based belief”.

The term “harm” is not defined and should be clarified. At the moment the term is too wide and imprecise and could well result in an unjustified limitation on the freedom of expression.

Discussion

Bill of Rights Act Issues

The starting point for a discussion of this amendment is that it constitutes an interference with the freedom of expression as well as having an impact upon the freedom of religion guaranteed under the New Zealand Bill of Rights Act 1990 (NZBORA).

Any interference with the rights guaranteed under NZBORA should be limited to that which is absolutely necessary to protect a group from a clearly defined outcome.

The proposed amendment poses some difficulties insofar as the limitation of these rights is concerned. In a number of respects the two rights are entwined. The religious belief right involves the manifestation or witness of that belief coupled with the practice or teaching of that belief. This necessarily involves communication at which stage the freedom of expression right is engaged.

Because faith-based belief is strongly held, discussions surrounding doctrine or belief systems can become highly contentious and emotive. Care must be taken to ensure that the spirited nature of faith-based debate is not inhibited.

If there is to be a restriction of the NZBORA rights to which I have referred, those restrictions must be clearly expressed. As the proposal in the Bill stands this clarity is absent.

The extent of the restriction of a NZBORA right must be necessary. The following is a test for the scope of such necessity.

The Scope of Necessity

Without the requirement to comply with NZBORA, restrictions on expression could fall within what is referred to as the “harmful tendency test”.

This is based on a vague, general fear that the speech might indirectly contribute to some possible harm at some indefinite future time. This test is quite extensive in its effect and could allow the State to punish speech that contained ideas that it opposed or did not favour. That includes speech that criticized government policies or officials.

The provisions of NZBORA and the fact that a restriction on a right must be necessary demands a higher test. This stricter test is known as the “emergency” test. Under this test the State could punish speech only when it poses an emergency – that is when it directly, demonstrably and imminently causes certain specific, objectively ascertainable serious harms that cannot be averted other than by censorship. This would fulfil the necessity requirement for an abrogation of a NZBORA right.

The issue then is whether the language of the amendment falls with the emergency principle or whether it is more oriented towards a harmful tendency model.

I suggest that the language which makes unlawful excite hostility or ill will against or bring into contempt or ridicule a religious group does not contain the necessary element of immediacy of harm that would bring the speech within the “emergency” test and therefore demonstrates that the amendment falls within the “harmful tendency” test.

It is submitted that this is insufficient to warrant an abrogation of the rights under NZBORA guaranteed for section 14 and 15. The insufficiency of language is further demonstrated by a semantic analysis.

The words ‘excite hostility against’ or ‘bring into contempt’ any group (s.61) or threatening, abusive, or insulting and which are likely to ‘excite hostility or ill will against, or bring into contempt or ridicule’ (s.131) are imprecise.

The use of the word “hostility” is a part of this absence of precision. “Hostility” and its close relation “hatred” are powerful words.

The emotion of “hatred” or “hostility” is far deeper and more visceral than that which may be engendered by abusive or insulting speech. Abusive or insulting speech may be rude, uncouth, ill-mannered or offensive. It may prompt a reaction or a response from the person against whom it is directed. But it would be unlikely to be able to go so far as to stir up hostility towards a group of people based on a shared characteristic.

To engender the incitement of hatred or hostility the language used would have to be far stronger. For this reason it is my submission that the language must be such that it stirs up, maintains or normalizes violent hostility against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons or that a person says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for or threatens violence or hostile action against such group of persons.

This emphasizes the importance of the speech engendering or threatening violence or hostile action. There must be an immediacy of harm or threat – what is referred to as the “emergency” principle – a clear and present danger arising from the speech.

It eliminates the slippery and emotive concept of hate or hostility and rather emphasizes the importance of characterizing the speech as dangerous. The emphasis is upon hostile speech because hostility is more capable of being resolved into action.

The quality of the published material and what it seeks to achieve is related to the concepts of violence and hostility but removes the qualities of threat, abuse or insult.

The use of those terms in any proposed legislation would water down robust speech to virtually nothing and would go far beyond what is generally understood by “hate” speech. As I have said, language may be offensive, hurtful or insulting without necessarily setting out to stir up hostility or hostile action and robust debate must be encouraged as well as a need for audiences to be robust and resilient themselves.

The “Religion” Problem

Clearly if one were to add religion, threatening, abusive or insulting language about adherents of the Islamic faith would fall within the first limb of the section 61(1) test. But is it necessary that religion be added? And should this be simply because a religious group was targeted in the March 2019 terrorist attack? And if religious groups are to be added, extreme care must be taken not to unnecessarily abrogate the NZBORA rights contained in sections 14 and 15.

The difficulty with including threatening, abusive or insulting language against groups based upon religion means that not only would Islamaphobic “dangerous speech” be caught, but so too would the anti-Christian, anti-West, anti “Crusader” rhetoric of radical Islamic jihadi groups be caught.

Would the remarks by Winston Peters condemning the implementation of strict sharia law in Brunei that would allow the stoning of homosexuals and adulterers be considered speech that insults members of a religion?^[1]

A further difficulty with religious-based speech is that often there are doctrinal differences that can lead to strong differences of opinion that are strongly voiced. Often the consequences for doctrinal heresy will be identified as having certain consequences in the afterlife.

Doctrinal disputes, often expressed in strong terms, have been characteristics of religious discourse for centuries. Indeed the history of the development of the freedom of expression and the freedom of the press was often in the context of religious debate and dissent.

It may well be that to add a category of religion or religious groups will have unintended consequences and have the effect of stifling or chilling debate about religious belief.

An example of the difficulty that may arise with restrictions on religious speech may be demonstrated by the statement “God is dead.” This relatively innocuous statement may be insulting or abusive to members of theist groups who would find a fundamental aspect of their belief system challenged.

For some groups such a statement may be an invitation to violence against the speaker.

Yet the same statement could be insulting or abusive to atheists as well simply for the reason that for God to be dead presupposes the existence of God which challenges a fundamental aspect of atheist belief.

A further example may be seen in statements of faith.

The Shema Yisrael provides an example of the potential for faith based disputation.

The Shema is the centrepiece of morning and evening Jewish prayers. It states as follows:

Sh’ma Yisrael Adonai Eloheinu Adonai Eḥad: “Hear, O Israel: the LORD is our God, the LORD is One.”

A further example could be taken from Islam’s Shahada “”Lā ʾIlāha ʾIllā Allah, Muḥammadun Rasūl Allah” –  “There is no God but God and Muhammad is His Prophet”.

Both statements occupy a number of different levels of meaning.

First, to the devout Muslim or Jew it is a statement of belief and faith.

Secondly, to the devout Muslim or Jew it is a statement of fact – although that cannot be empirically proven and that qualification alone would challenge a devout Muslim.

Thirdly, it is a challenge to any other belief systems that if they hold that there is any other God but Allah or the LORD (Adonai), their belief is false. To many true believers in other religions that could amount to a serious and aggressive challenge.

Thus it can be seen that in a statement as seemingly innocent as the Shahada and the Shema Yisrael there are layers of meaning that could be considered abusive or insulting yet represent some of the fundamentals of muscular and vigorous religious debate.

These examples illustrate the danger of placing religious discourse into the unlawful categories of discrimination.

If it were to be determined that religious groups would be added to those covered by section 61, stronger wording relating to the consequences of speech should be applicable to such groups. Instead of merely “exciting hostility against” or “bring into contempt” based upon religious differences perhaps the wording should be “advocating and encouraging physical violence against..” .

This would have the effect of being a much stronger test than exists at present under section 61 and recognizes the importance of religious speech and doctrinal dispute.

At the moment the test in the Human Rights Act is the “harmful tendency” test – an approach that is problematical in that there need be no immediacy of danger. This contrasts with the “immediacy” or “emergency” test which requires that the speech carry with it a threat of imminent danger of physical harm and which I have discussed above. This more stringent emergency test would bring the speech within a justifiable limitation of the s. 14 NZBORA guarantee of freedom of expression.

Those who advocate a “harmful tendency” test claim that although there may be no immediacy of harm, nevertheless repetition of the message may elevate the risk. In my view it would have to be proven that mere repetition removes the speech from the “viewpoint neutral harmful tendency” position to that of immediacy of harm.

For all the reasons above, I do not consider that it is necessary for religious groups to be included in sections 61 and 131 of the Human Rights Act.

In the event that it is decided that religious groups should be included in sections 61 and 131, I emphasise the necessity for precision in the language of the sections.

I am also of the view that to merely provide protection for religious groups is discriminatory in and of itself. I develop this in the next section of this submission.

The United Kingdom Position

The issue of restrictions on religious speech are the subject of a specific exception in the UK. I refer to section 29J of the Public Order Act 1986 (United Kingdom), which provides:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

The Christchurch Royal Commission’s view was that such an exception would make the offence of inciting racial or religious disharmony – especially the latter – unworkable.

It seems that the Royal Commission misunderstands the nuance behind the exception.

The UK exception goes not to the workability of the proposed amendment but rather to the quality of the discourse and recognises that religious debate can become passionate and heated which is a historical fact. Differences over belief systems have long prompted vigorous and highly charged discussion and language.

The exception does not go so far as to allow for the advocacy of violence or hostile action which would fulfil the immediacy or emergency test. It could be argued that because the immediacy test targets consequences rather than content, an exception such as that appearing in section 28J is not required, in that section 29J merely states examples of freedom of expression which are likely to occur and have occurred over the centuries in religious debate.

However, the inclusion of such an exception would provide protection for adherents of all religious faiths who wish to engage in the robust debate that often surrounds matters of belief.

Definitional Difficulties

Excite Hostility

The language of the proposal adopts the “harmful tendency” approach to limiting the freedom of expression. This restricts expression based on an as yet undetermined potential for harm rather than actual or real threat of harm.

In this respect the use of the words “excite hostility” results in imprecision. I suggest the use of the word “incite” for the following reasons:

The verb “to incite” means to urge or spur on; to stir up, animate, instigate or stimulate to do something or towards some action.[2]

“Stirring up” could be said to be an action that precedes incitement, although it is included as part of the definition cited above. Incitement, however, goes further. It suggests that the inciter expects and intends some sort of action or response to the words that are being used.

Incitement goes beyond engendering an emotional response (which is what hatred or hostility is). It seeks the deployment of hatred or hostility towards some end which aligns with my proposal above that hatred or hostility should be considered within the context of threatened violence or hostile action.

If “incitement” or “stirring up” is not associated with an active consequence it would mean that the law is prohibiting the instigation of an emotion without an associated action.

It can be no offence to harbour an emotion or a belief that is so strongly held in a negative sense that it amounts to hatred or hostility. To do so would be to create a “thought crime”. The criminal law addresses behaviour. It does not address feelings. In the case of hatred or hostility it must be manifested in some form of behaviour or threatened behaviour.

It should be noted that the words “stir up” appear in corresponding legislation in the United Kingdom, rather than the word excite. The verb “excite” is used in a slightly unusual sense in section 131 of the Human Rights Act and suggests causation. This means that an “intent to excite” cannot be established without showing an intention to either cause “hostility or ill-will” that did not previously exist, or enhance or increase pre-existing “hostility or ill-will”. It logically follows that preaching hatred to the already converted would not breach section 131.

It will be seen from the above discussion that a greater degree of precision is required in the proposed language of the amendment.

Religious\Ethical Belief?

It should be noted that other prohibited areas of discrimination include ethical belief, which is defined as the lack of a religious belief, whether in respect of a particular religion or religions or all religions.

If the Legislature were to be serious and evenhanded about faith or non-faith based types of discrimination, ethical belief should have been included.

Although ethical belief is clearly defined, religious belief is not. What is religious belief. Does it mean theism in the broadest sense or a belief system surrounding a certain faith based credo such as Buddhism, Islam, Shintoism or Christianity. Religious belief, notwithstanding the definition, can and often does include ethical belief. Christianity has significant ethical underpinnings associated with a faith-based credo.

In my view, to be consistent in approach with definition, the term “religious belief” should be replaced with “faith-based belief”. This term is used in the explanatory statement and more correctly defines the nature of the belief and more clearly distinguishes it from “ethical belief”

Harm

The term “harm” is not defined and this should be clarified.

“Harm” is defined in the Harmful Digital Communications Act 2015 (HDCA) as meaning “serious emotional distress”. It should be noted that the HDCA provides remedies for individuals in the context of electronic communications. It is an example of “internet exceptionalism” for the nature of the wrongs specified in that legislation do not exist in the “real” or “kinetic” world.

Within that context there would be difficulties for faith-based groups to establish that harm had been caused to the group rather than to any individuals within the group. The responses of the various members of a group may vary widely to any perceived antagonistic statement.

This highlights the need for precision in the approach to be taken. The “emergency” test would mean an immediacy of threat of physical harm to a group or to members of a group based upon their faith.

As matters stand there is little if any evidence of an immediate threat. The Regulatory Impact Statement which points to a lack of evidence of the harm identified.

In my submission the term harm should be defined as “a realistic threat or danger of physical harm” which would clearly encompass the “emergency” test.

Conclusion

In conclusion I submit as follows:

1. The references to exciting hostility or causing harm should be redefined to for the abrogation of a NZBORA right
2. There should be a clear exception that would allow for spirited, robust and at time confrontation religious debate similar to the provisions of section 29J of the Public Order Act 1986 (United Kingdom)
3. It should be made clear that the protections proposed and available under sections 131 and 161 of the Human Rights Act should not only extend to religious belief but also to ethical belief as defined in the principal Act.

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[1] Derek Cheng “Winston Peters criticizes Brunei for imposing strict Sharia law” NZ Herald 31 March 2019 https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12217917

[2] Oxford English Dictionary 2^nd ed.

The Fall of Numenor – A Review

“The Fall of Numenor” is a compilation of J.R.R. Tolkien’s writings about Numenor and the Second Age of Middle-earth. It is edited by Brian Sibley and is the most recent of a
number of compilations of Tolkien’s various writings centred around his created mythology. Examples of earlier works include “Beren and Luthien” and “The Fall of Gondolin” (to mention but two) which were edited and compiled by his son and literary executor, Christopher Tolkien.

The raw material, if I can call it that, of these compilations has seen print in various works edited by Christopher, in the form of “Unfinished Tales” and the multi-volume “History of Middle-earth”. Although these works organise Tolkien’s writings (which in the mind of the author were not for publication) chronologically and to a degree thematically, because of the way in which the source material was created – because Tolkien reworked or “retold” much of the material – it has been something of a challenge to get a consistent narrative of any of the stories. Thus the decision was made to re-organise the material into something resembling a narrative, recognising that total consistency of the storyline or the characterisation was not going to be achieved. In many respects the project has been successful, presenting readers with a compilation of otherwise scattered material and the ability to understand the creative process and at the same time enjoy the product of Tolkien’s creative effort.

The passing of Christopher Tolkien, whose last contribution was “The Fall of Gondolin” has not meant the end of the work. “The Nature of Middle-earth” was an edited compilation by Carl F. Hostetter and was published in 2021. Brian Sibley’s compilation of Tolkien’s writings on the Second Age -“The Fall of Numenor” is the latest offering.

The organisation of the material is based on Tolkien’s “Tale of the Years” which is a chronology of the events that preceded the narrative of “The Lord of the Rings” and the chronological entries are supplemented or expanded from Tolkien’s various sources. In addition to providing a history of Numenor the actions of the Dark Lord Sauron are woven into the story, as is the tale of the forging of the Rings of Power. Although the Rings do not feature with any prominence in the tale of the decline and fall of Numenor, Sauron’s part in the story is essential. Although the Dark Lord is more closely associated with the conflict with the Elves of Lindon led by Gil-Galad the involvement of the Numenoreans with the affairs of Middle-earth resulted in Sauron being taken to Numenor (or was his presence there part of his cunning master-plan). Once there he proceeded with the corruption of the Numenoreans which led to the attempt by Ar-Pharazon to travel to and reach the Undying Lands. This breach of the Ban of the Valar led to the destruction of Numenor. Sauron’s bodily form was destroyed but in spirit form he returned to Middle-earth and took up the One Ring.

The “faithful” Numenoreans, led by Elendil the Tall and his sons Isildur and Anorien sailed from the wreck of Nemenor and established the Realms in Exile in Middle-earth. The final conflict with Sauron which saw the end of the Second Age and the loss of the One Ring brings the narrative to an end.

The chronology set out by Tolkien covers thousands of years so necessarily the tale is somewhat episodic in form and where there are expansions – such as the tale of Aldarion and Erendis – the material is inserted at the appropriate chronological spot. Most of the material about Aldarion and Erendis comes from “Unfinished Tales”.

There is little need for editorial comment, which is kept to a minimum. What is helpful is that much of the narrative is fleshed out from other sources including “The Lord of the Rings” so that the reader has an editorially complete picture of the subject matter at hand.

Much of the style to tale telling is in Tolkien’s “grand manner” which characterises the narrative in “The Silmarillion”. Readers familiar with that work should have little difficulty with “The Fall of Numenor” but those looking for a narrative similar to “The Lord of the Rings” will be disappointed. Tolkien’s “grand manner” is characteristic of most of the writings about the First and Second Ages. Those seeking an expansion of “The Tale of the Years” chronology will be well rewarded. Bringing all the material into the compass of a single book and in such an organised form is extremely helpful. In addition, as I have suggested, the hand of the editor is very light. Sibley has organised the material with care and, as an editor should, has allowed Tolkien to speak for himself.

“The Fall of Numenor” is a welcome addition to the Tolkien library. I describe it as thus because for me the Tolkien Canon are those works published while Tolkien was alive or which was in preparation when he passed – thus “The Silmarillion” is included. However, the timing of publication is interesting if only for the fact that the very same story that is told in “The Fall of Numenor” is the subject of Amazon’s “The Lord of the Rings:The Rings of Power”.

The release of the book must be a huge source of frustration for the show runners of the Amazon project because what they can use (and for television only) is the material within the covers of “The Lord of the Rings”. None of the material dealing with the Second Age which has been published elsewhere – like “The Silmarillion” or “Unfinished Tales” for example – can be used. Thus, the details of the story line in “Rings of Power” must be derived from LOTR or from the imagination of the writers. I am sure that the writers must look greedily at “The Fall of Numenor” but with great frustration, knowing that, like the Undying Lands to the Numenoreans, the content is forbidden them.

Of course, the publishers will benefit. Interest in “The Rings of Power” will drive those who are keen to know the detail to consult – and hopefully buy – “The Fall of Numenor”. And that will spark debate as the inevitable comparisons between text and imagined adaptation are compared and contrasted.

I know there was a body of thought that rejected Peter Jackson’s adaptation of LOTR saying that it was not true to the text, or that pieces had been missed out. One immediate problem with “Rings of Power” is, as I have suggested elsewhere, the compressed time line. Readers of “The Fall” will find a more majestic development of Numenor with clear line towards decline and fall which is all going to occur rather too suddenly in “Rings of Power”. And that is just a beginning. The detail will provoke its own debates and discussions and I imagine that gatherings of Tolkien aficionados either in person or online will have fertile ground for lengthy debate.

But as I have said, the book is a useful addition to the library, presents the material in a coherent and logical form and is a most enjoyable read. It is recommended that readers set aside a few hours to really immerse themselves in the text. This is not a book for reading a paragraph at a time.

1 January 2023.

“The Lord of the Rings: Rings of Power” The First Season Review

I reviewed the first four episodes of “The Lord of the Rings: The Rings of Power” in September 2022.

The first series is completed and is available on Amazon Prime. In this review I shall make a number of observations about the series which could amount to “spoilers”. Readers are warned.

By the end of the first series we have seen the creation (or ruin) of Mordor by a bizarre combination of fire and water, the creation of the three Elven Rings (Vilya, Nenya and Narya) and the appearance of Sauron (who had been present for some time in the guise of a Deceiver). In addition the Stranger who fell from the sky, and who is possessed of enormous power, has decided to head east of the Greenwood in the company of Nori the proto-hobbit. The forces of Numenor lead by Tar-Miriel the Regent Queen and Elendil, prompted by Galadriel, have landed in Middle-earth, encountered and overcome the Southern band of Orcs and have installed Halbrand as the Returned King of the South. However, in the creation (or ruin) of Mordor Tar-Miriel has been blinded and the future of her rule is therefore in question.

I expressed some concern in my earlier review about the truncation of the time line. I was prepared to allow for narrative flow and the nature of adaptation in my earlier review, but the compression of events creates its peculiar difficulties with Tolkien’s chronology which demands a scope of centuries. What has happened is that everything seems to have tumbled in on top of one another without an opportunity for the  audience, or indeed the characters, to react to the impact of the various events.

Part of the problem lies in the fact that Tolkien aficionados will be aware of the content in “The Silmarillion” and “Unfinished Tales” along the “The Children of Huirin”, “Beren and Luthien” and “The Fall of Gondolin”.  Then there are the various retellings and narrative developments in the multi-volume “History of Middle-earth”(The “Fall of Numenor” which is directly relevant to the series and edited by Brian Sibley has only very recently been published).

Because of the arrangements that were made between Amazon and the Tolkien Estate only a very limited amount of material is available for use, and the show-runners have to fill in some rather large gaps – gaps for which information is available but because of licensing arrangements cannot be used.

Thus we get hints of a deeper time, a long past history, an enormous conflict between the Elves and the powers of Evil in the form of Morgoth, but as to the detail of Morgoth’s villainy, the making of the Silmarils (and what they were) by Feanor, their theft by Morgoth and the fearful acts of Feanor seeking the Silmarils driven by deep revenge there is but a hint. But these aspects are vital to an understanding of the events of the Second Age.

We receive hints of the Bliss of Valinor, a land without stain and a place of retreat for the Elves but we are not informed of the fact that while Elves have a duality of nature, the Race of Men have the Gift of Men – death – and cannot pass into Valinor – with one exception.

The glory of Valinor is hinted at when Celebrimbor is attempting to make the Three Elven Rings. He requires metal of a quality unknown in Middle-earth. Galadriel surrenders the knife given her by her brother Finrod (she did in fact have three other brothers and she was a niece of Feanor himself) which is melted down and provides the purity of material required.

At the beginning of the series Galadriel is on a quest for Sauron whom she believes survived the overthrow of Morgoth – but of that overthrow once again we get a hint. Importantly we are not told that in fact the land of Numenor was granted to the faithful Men as a reward for their part in the overthrow of Morgoth. Nor are we told of the prohibition on the Men of Numenor sailing westward to Valinor the peaks of which can be seen over the ocean.

In the First Age one man only set foot on Valinor – Earendil, bearing a Silmaril who sought the aid of the Valar in the war against Morgoth. That aid was forthcoming, but Earendil was not permitted to return to the land of the living and was places as a Star in the heavens by the Valar – The Flammifer of Westernesse.

Earendil is of critical importance in the “back story” to the Rings of Power yet because of the paucity of material in “The Lord of the Rings” that back story cannot be developed as it should be. Earendil was married to the elf-princess Elwing the White. They had two children – Elros and Elrond. After the defeat of Morgoth the children were given a choice of the race to which they wished to belong. Elros chose his “Race of Men” side and became first King of Numenor, taking the name Tar-Minyatur. Elrond chose his Elven side. Once again this is hinted at in comments by the way, but the familial connection between Elrond and the Royal House of Numenor has fallen by the wayside.

From time to time this deeper background is mentioned but only in passing. We are thrown into a sequence of events that obviously has a significant precursor, but the details of that precursor are unknown. Once again the problem lies in the fact that the show runners are limited in the material that they can use. It must be very difficult, I suppose, to have references to Earendil in LOTR and be limited to using those but knowing that there is a huge trove of information available in material elsewhere. But that material is unavailable because the rights have not been purchased.

This then demonstrates the first major difficulty that the first season and indeed the series faces – the material that they can use is very limited indeed. The hints that appear in LOTR and in the Appendices requires a large amount of imagination to fill in the gaps. I suppose a further difficulty lies in the fact that imagination cannot be let to run riot, especially when much of the material which could fill in the gaps is available elsewhere but unusable because of licensing arrangements.

One of the critical questions that the first season answered was “who was Sauron?” The show runners posed a number of tantalizing alternatives. Was he the Stranger, possessed of considerable power, who fell from the sky and was taken in by the proto-hobbits? Was he one of the curious  menacing three white witches? It turned out that in fact they were Seekers for Sauron who mistakenly identified the Stranger as Morgoth’s servant, and the Stranger eliminated them.

Was he, then, the master of the Southern Orcs – the fallen elf Adar. That was fairly easily dismissed. The final revelation that Halbrand was Sauron was a little hard to work out. Part of the problem was that Halbrand didn’t exactly have the charisma (or maybe a better term is menace) for the Dark Lord and Morgoth’s most faithful lieutenant.

But upon reflection finally identifying Halbrand as Sauron was in the nature of finally revealing a deception. That is consistent with the approach that Sauron adopted when he manifested himself as Annatar – the Bringer of Gifts. His entire approach was one of deception, even to the point of claiming to be the lost King of the Southern Lands (which later became Mordor). At one stage, while working as a smith in the forge of Celebrimbor, he makes reference to a gift – a subtle hint to his identity as Annatar.

It is a bit difficult to work out what Sauron is about. What are his objectives. That he was involved at least in the early stages of Celebrimbor’s quest to find a solution for the problems that beset the Elves in Middle-earth is a little concerning, yet he was not in any way involved in the creation of the Three Rings. And indeed the creation of the Three seems to be more a matter of accident than of part of a greater ring-making design.

Tolkien tells us that the Elves of Eregion made the Three in secret, but I always had the impression that this was contemporaneously with Sauron’s master-plan to create Rings for the peoples of Middle-earth that would be linked to the One that was forged in the fires of Mt Doom.

So far there is no sign of the Seven Rings for the Dwarves nor the Nine for Mortal Men. And indeed the last episode of the first season ends with Sauron entering the newly formed land of Mordor which was previously the South land of which he claimed to be King.

Clearly there is a lot more to come and I imagine that subsequent seasons will address the issues of the forging of the Seven, the Nine and the One. It must not be forgotten too that Sauron is humbled and taken to Numenor where he works his evil and his deception that brings about the downfall of the Land of Gift.

Clearly there is more scope for this in subsequent seasons, but one of the problems that the show runners are going to face is one of their making and that is the one to which I have made reference – that of time compression. How they will be able to fit all that is to come within their time scale and yet maintain the integrity of Tolkien’s vision will be a challenge.

The Dwarves and the proto-hobbits caused me some problems in the sense that the way that they were portrayed had elements of a caricature to them. Clearly the visual appearance of the Dwarves owed much to the way in which some of them were portrayed in Peter Jackson’s “The Hobbit” films, particularly to the large proboscis-like noses. I thought that this was a bit overdone.

The proto-hobbits too had elements of caricature to them. We know from the Prologue to “The Lord of the Rings” that the hobbits began as a migratory people who ended up in the Shire. We know that they were based on the archetypal English yeoman based in the country rather than in a larger town or village. But the prot-hobbits were not only bucolic but downright eccentric. They seemed to bumble about in a chaotic manner with very little structure in what they did. Their attitudes were those of extreme rustic primitivism to the extent of having foliage in their hair. This may have been designed to bring a light-hearted element to the show but there is humour on one hand and downright caricature on the other. If the proto-hobbits are going to play a role – and I suspect that they are – it might be better if they “wise-up” a bit and drop the bucolic caricature.

As things stand by the end of the first season the split between the main body of the proto-hobbits and the adventurous Nori has taken place as Nori accompanies the Stranger to the East. The Dwarves maintain their tenuous relationship with the Elves – especially the friendship between Elrond and Prince Durin and the discovery of mithril (and the existence of the Balrog in the dark depths of Khazad-dum) has become the central feature in that relationship.

I wonder if the mithril has been invested with a bit too much significance in “Rings of Power”. In “The Lord of the Rings” it was a thing of wonder, often hinted at when it was discovered that Frodo was wearing a suit of mithril mail.

However, the “Rings of Power” took the significance of mithril to an entirely different level and not one that I am sure is justified. There is a suggestion that somehow mithril has within it the light of a Silmaril or perhaps even of the Two Trees of Valinor.

It is dealt with in the following way:

Elrond recounts an apocryphal tale called The Song of the Roots of Hithaeglir. This song claims the origin of mithril to be when an Elf-warrior and a Balrog fought over a certain tree in the Misty Mountains that contained the light of the last Silmaril. It was then that lightning struck the tree, sending out tendrils of ore into the roots of the mountains beneath. Gil-galad and Celebrimbor believe this tale to be true, and furthermore that the remnants of the Silmaril’s light in mithril could save the Elven race from fading and being forced to return to Valinor.

This is an interesting concept but has no substance in the sources. There is no suggestion anywhere in Tolkien’s writings that there was a tree in the Misty Mountains that contained the light of a Silmaril – nor anywhere else for that matter. The light of the Trees of Valinor was captured by Feanor in the Silmarils and that is as far as it went.

The closest one could get to any suggestion of ethereal light is that the Elves of Eregion made an alloy from mithril called ithildin (“star moon”), used to decorate gateways, portals and pathways. It was visible only by starlight or moonlight. The West Gate of Moria bore inlaid ithildin designs and runes.

The Elven Ring Nenya (The Ring of Adamant) was described as being made of mithril and set with a “white stone”, presumably a diamond (this is never stated explicitly, although the usage of the word “adamant”, an old synonym, is strongly suggestive). The ring was wielded by Galadriel in Lothlórien, and possessed radiance that matches that of the stars. Frodo Baggins was able to see it by virtue of being a Ring-bearer.

So the first season ends with a number of pieces in play. The scene has been set for further developments in following seasons. It would be idle and unprofitable to speculate on what might happen although we do know that Pharazon the Numenorean Chancellor usurps the throne of Numenor, becomes Ar-Pharazon the Golden, humbles Sauron and brings him to Numenor. He falls under Sauron’s sway and leads an expedition to Valinor, the Undying Lands, whereupon his fleet is destroyed and the Valar call upon Iluvatar to destroy Numenor which sinks beneath the waves.

Sauron in spirit form returns to Mordor and resumes residence in the Dark Tower, Barad-Dur. Seven ships, bearing the Faithful, Elendil the Tall, his son Isildur and their followers, sail to Middle-earth to establish the Kingdoms in exile. The Seven Dwarven Rings and the Nine for  Mortal Men doomed to die are yet to be crafted, as is the One.

I have focused in this review upon certain aspects of the first season. As I suggested in my earlier review of the first  four episodes there are beautiful moments in the series that capture my imagining of Tolkien’s creation. This continues throughout the first season. The visual renderings are remarkable and the wreck that leads to the formation Mt Doom of Mordor is quite spectacular. As I observed in my earlier review, much is owed to Jackson’s earlier visualization.

The rendering of Numenor – a civilization of power and magnificence – is excellent and some of the scenes in Lindon capture the Elvish interrelationship with nature. The Dwarf realm of Khazad-dum is likewise magnificently rendered and the series succeeds visually if nothing else. As earlier observed there are some casting issues that I have which grate a little. I didn’t see Celebrimbor as a somewhat effete alchemist – rather a hands-on smith and inheritor of the craft skills of Feanor. Gil-Galad remains a disappointment.

The cast and crew went back to work in early October 2022 filming this time in the UK rather than in New Zealand. Although Covid interrupted the first season filming which took 18 months to film, there can be no doubt that many of the special effects and other production values would have taken time.

The head of Amazon Studios Jennifer Salke has said they are not willing to rush and she told Variety

“We want the shortest time possible between seasons, but we want to keep the bar just as high. So it’ll take what it takes but there’s been some urgency around moving quickly, which is why these guys have been writing all through their hiatus. We’re moving fast.”

Season 2 may be out in late 2023 (one wonders if like the release of the books Amazon holds to a September release date) but early 2024 would probably be more realistic. It will be interesting to see how Season 2 develops the story.

Religious “Hate Speech” under the Human Rights Act 1993

Introduction

The Minister of Justice has released the long-awaited “hate speech” proposals. The press release dated 19 November 2022 states:

“Currently, under the Human Rights Act 1993, it is illegal to publish or distribute threatening, abusive, or insulting words likely to ‘excite hostility against’ or ‘bring into contempt’ any group on the grounds of colour, race, ethnic or national origins. Those grounds will now be extended, in both the civil (section 61) and criminal (section 131) provisions, to cover religious belief.”

This article considers the policy that has been announced and is a “first impression” overview of the proposal.

Before considering whether such changes need to be made – a different consideration to whether they should be made – it is important to understand how the Human Rights Act works in practice.

Human Rights Act – Sections 61 and 131

The Act prohibits a number of discriminatory practices in relation to various activities and services.^[1] It also prohibits indirect discrimination which is an effects based form of activity.^[2] Victimisation or less favourable treatment based on making certain disclosures is prohibited.^[3] Discrimination in advertising along with provisions dealing with sexual or racial harassment are the subject of provisions.^[4]

The existing provisions relating to racial disharmony as a form of discrimination and racial harassment are contained in section 61 and 63 of the Act.[5]

There are two tests under section 61. One is an examination of the content of the communication. Is it threatening, abusive or insulting? If that has been established the next test is to consider whether it is:

1. Likely to excite hostility against or
2. Bring into contempt

any group of persons either in or coming to New Zealand on the ground of colour, race or ethnic or national origins.

Section 131 of the Human Rights Act 1993 creates the offence of inciting racial disharmony[6]. The unlawfulness of the communication in s.61 becomes an offence under s. 131. Pursuant to section 132 a prosecution for an offence under section 131 requires the approval of the Attorney-General.

These provisions could well apply to “dangerous speech” – a terms that I prefer to the emotionally overburdened term “hate speech”.

Is it necessary, therefore, to extend the existing categories in sections 61 and 131 to include religion.

Religion

Clearly if one were to add religion, threatening, abusive or insulting language about adherents of the Islamic faith would fall within the first limb of the section 61(1) test. But is it necessary that religion be added? And should this be simply because a religious group was targeted?

The difficulty with including threatening, abusive or insulting language against groups based upon religion means that not only would Islamaphobic “dangerous speech” be caught, but so too would the anti-Christian, anti-West, anti “Crusader” rhetoric of radical Islamic jihadi groups be caught.

Would the remarks by Winston Peters condemning the implementation of strict sharia law in Brunei that would allow the stoning of homosexuals and adulterers be considered speech that insults members of a religion?^[7]

A further difficulty with religious-based speech is that often there are doctrinal differences that can lead to strong differences of opinion that are strongly voiced. Often the consequences for doctrinal heresy will be identified as having certain consequences in the afterlife.

Doctrinal disputes, often expressed in strong terms, have been characteristics of religious discourse for centuries. Indeed the history of the development of the freedom of expression and the freedom of the press was often in the context of religious debate and dissent.

It may well be that to add a category of religion or religious groups will have unintended consequences and have the effect of stifling or chilling debate about religious belief.

An example of the difficulty that may arise with restrictions on religious speech may be demonstrated by the statement “God is dead.” This relatively innocuous statement may be insulting or abusive to members of theist groups who would find a fundamental aspect of their belief system challenged.

For some groups such a statement may be an invitation to violence against the speaker.

Yet the same statement could be insulting or abusive to atheists as well simply for the reason that for God to be dead presupposes the existence of God which challenges a fundamental aspect of atheist belief.

This example illustrates the danger of placing religious discourse into the unlawful categories of discrimination.

If it were to be determined that religious groups would be added to those covered by section 61, stronger wording relating to the consequences of speech should be applicable to such groups. Instead of merely “exciting hostility against” or “bring into contempt” based upon religious differences perhaps the wording should be “advocating and encouraging physical violence against..” .

This would have the effect of being a much stronger test than exists at present under section 61 and recognizes the importance of religious speech and doctrinal dispute.

At the moment the test in the Human Rights Act is what may be called a “harmful tendency” test – an approach that is problematical in that there need be no immediacy of danger. This contrasts with the “immediacy” or “emergency” test which requires that the speech carry with it a threat of imminent danger of physical harm. This more stringent test would bring the speech within a justifiable limitation of the s. 14 NZBORA guarantee of freedom of expression.

Those who advocate a “harmful tendency” test claim that although there may be no immediacy of harm, nevertheless repetition of the message may elevate the risk. In my view it would have to be proven that mere repetition removes the speech from the viewpoint neutral harmful tendency position to that of immediacy of harm.

The UK Approach

The issue of restrictions on religious speech are the subject of a specific exception in the UK. I refer to section 29J of the Public Order Act 1986 (United Kingdom), which provides:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

The Christchurch Royal Commission’s view was that such an exception would make the offence of inciting racial or religious disharmony – especially the latter – unworkable. This is correct if indeed it were deemed necessary to have religion included in the Human Rights Act categories. It seems that the Royal Commission was putting the cart before the horse.

The UK exception goes to the quality of the discourse and recognises that religious debate can become passionate and heated.

The exception does not go so far as to allow for the advocacy of violence or hostile action which which would fulfil the immediacy or emergency test. It could be argued that because the immediacy test targets consequences rather than content, an exception such as that appearing in section 28J is not required, in that section 29J merely states examples of freedom of expression which are likely to occur and have occurred over the centuries in religious debate.

However, the inclusion of such an exception would provide protection for adherents of all religious faiths who wish to engage in the robust debate that often surrounds matters of belief.

Conclusion

Towards the end of her press release the Minister made the following comment:

“Some of the debate on this topic over the last year been disappointing, and at times deliberately divisive and misleading, particularly in regard to the proposals that were out for consultation. This is not, and never has been, about the Government wanting to restrict free speech.”

There can be no doubt that this Government characterises dissent or a contrary view as misleading or misinformation. The Minister’s comment continues that hostility towards opposing views. To characterise debate as “disappointing” fails to recognise the importance of debate and the contending views that are present in the community.

Her last sentence is naïve in the extreme. The proposed amendment, while constituting a significant retreat from early pronouncements on the subject of “hate speech” is all about a restriction on freedom of expression – a concept that is wider than “freedom of speech”. People should not only be able to articulate a point of view. Others have a right to hear it.

Perhaps the Minister needs to be made aware of the fact that section 14 NZBORA guarantee not only protects the outward flow of communication – the act of communicating or articulating an idea – but the inward flow as well – the reception of a communication.

In my opinion the proposed change has not been justified and should not be the subject of an amendment to the Human Rights Act 1993.

---

[1] Human Rights Act 1993 sections 21 – 63.

[2] Ibid section 65.

[3] Ibid section 66

[4] Ibid sections 67 and 69.

[5] The provisions of section 61(1) state:

(1)           It shall be unlawful for any person—

(a)           to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or

(b)           to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting; or

(c)           to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television,—

being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

It should be noted that Internet based publication is encompassed by the use of the words “or other electronic communication”.

[6] The provisions of section 131 state:

•  Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $7,000 who, with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons,—
•  publishes or distributes written matter which is threatening, abusive, or insulting, or broadcasts by means of radio or television words which are threatening, abusive, or insulting; or
•  uses in any public place (as defined in section 2(1) of the Summary Offences Act 1981), or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting,—

being matter or words likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

•  For the purposes of this section, publishes or distributes and written matter have the meaning given to them in section 61.

[7] Derek Cheng “Winston Peters criticizes Brunei for imposing strict Sharia law” NZ Herald 31 March 2019 https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12217917

THERE’S SOMETHING HAPPENING HERE?

Introduction

Bruce Cotterill wrote an opinion piece for the New Zealand Herald. It was published on Saturday 5 November 2022. It was about free speech and entitled “Free speech – worth speaking up for.” It presented some important and compelling arguments in support of the importance and necessity of freedom of speech.

Mr Cotterill’s article attracted some comment. Even something as fundamentally important as freedom of speech is a contentious topic. Critics of advocates of free speech use the ability to express themselves freely in opposition. If it were not for free speech they would be unable to do so. That in itself demonstrates the vital importance of freedom of expression.

One critic of Mr Cotterill’s piece took him to task for conflating freedom of speech issues and disinformation. The reasoning is clear. There is a move afoot to point out and deal with disinformation. That in itself is a freedom of speech issue. No matter how wrong headed a point of view might be, if there is no immediacy of physical harm caused by the expression of the point of view, freedom of expression allows it to be communicated.

I should observe at this stage that rather than the term “Free speech” I prefer to use “freedom of expression.” There are two reasons for this.

The first is that is the term that is used in Section 14 of the New Zealand Bill of Rights Act 1990.

The second is that the right as expressed in section 14 recognises that freedom of expression is a two way street. There is the right to impart information and opinions of any kind in any form – what could be called the “outward flow”. There is also the right to seek and receive information and opinions of any kind in any form – what could be called the “inward flow”.

In the discussion that follows I go another step further than Mr Cotterill and conflate what is referred to generically as “hate speech” with disinformation. Both concepts have freedom of expression implications. My reasons for conflating the concepts will become clear in what follows.

My discussion commences with a prologue, highlighting some of the remarks made by the Primes Minister of New Zealand Ms Jacinda Ardern at the United Nations General Assembly.

These remarks set the stage for the discussion that follows. The starting point for that discussion is the announcement by the Minister of Justice Ms Kiri Allan that “hate speech” legislation – legislation that has had a gestation period that would rival that of a blue whale – will be enacted by the general election in 2023.

The discussion then moves to consider two documentaries that were screened on television during the week of 31 October 2022. One is entitled “Web of Chaos”. The other was the final episode of the series “A Question of Justice” and addresses hate crimes.

I then go on to make some observations about the climate of fear that has continued to develop in New Zealand, fed not only by documentaries such as “Fire and Fury” and “Web of Chaos” but also by some disturbing and sonorous remarks by the Director of the New Zealand Security Intelligence Service, Ms Rebecca Kitteridge.

Taken collectively these various events and pronouncements provide a backdrop against which a discussion of hate speech legislation, mis/disinformation and the tension with the freedom of expression is going to take place.

I pose a question – taken from the opening lines of a 1967 song by Buffalo Springfield entitled “For What its Worth” – “There’s something happening here?”

Prologue

On 23^rd September 2022 Prime Minister Ardern addressed the United Nations General Assembly. She spoke generally of the issues of the day before segueing into a discussion of the new weapons of war, referring to cyber-attacks, prolific disinformation and the manipulation of communities and societies.

The cyberattacks are easily understood. It was the second part that was concerning because the weapons to which Ms Ardern referred were words.

She quickly reassured her audience that “even those most light touch approaches to disinformation could be misinterpreted as being hostile to the values of free speech we value so highly”.

Yet within moments she retreated from that view when she posed the rhetorical question  “How do you tackle climate change, if people do not believe it exists?”

The answer becomes clear when you line that comment up against the claim made during the height of the COVID pandemic that the Government was the sole source of truth. The answer is to shut down speech that is hostile to the received wisdom of the Government.

If there is to be a move towards further restrictions of speech – and this is in the wind following the announcement during the week of 30 October that the Minister of Justice will introduce “hate speech” legislation before the next election – who is to decide what speech should be restricted? When does opinion become misinformation? What is an accurate opinion as opposed to an inaccurate one? When does mis/disinformation become “hate speech?” If the law manages to shut down one side of an argument the community is the poorer for being unable to evaluate an alternative view.

Two Documentaries

On 1 November 2022, TV1 screened the documentary “Web of Chaos”. The following day, Prime screened the fourth instalment of the series “A Question of Justice” which addressed hate crimes.

I shall start my consideration of the documentaries by explaining why I conflate disinformation and hate speech.

The predominant theme of “Web of Chaos” is that of disinformation and the way that online networks have enabled its spread. Sadly, at no time is disinformation defined. This is curious because much of the documentary contains interviews or commentary from two academics involved in The Disinformation Project. One of these academics is Ms. Kate Hannah.

Ms. Hannah describes how people are drawn into mis/disinformation networks in in different ways. She refers to the “trad wife” viewpoint. She claims that white Christian pseudo-Celtic pseudo-Nordic ideology lies behind this viewpoint. They (presumably the “white Christian pseudo-Celtic pseudo-Nordic”) use Pinterest and Instagram to draw in other women who are interested in interior design, children’s clothing, knitting, healthy food for children.

From this innocent start people are drawn in towards a set of white nationalist ideas. Fair skinned children with braids is a danger signal according to Ms Hannah. She did not explain why this was the case.

She then referred to the association of these ideas with a toxic masculinity which had

 ”…very fixed ideas about gender roles, race, ethnic identity, national identity, nationalism and rights to  things like free speech – very influenced by a totally US centric model.” (“Web of Chaos” at 21.5) 

In essence these characteristics, according to Hannah, derive from US based alt-right perspectives.

If I understand Ms Hannah’s position disinformation is associated with extremist ideologies. These ideologies are nationalistic, white supremacist and far right.

This may be viewed alongside the material presented in the documentary by Professor Lisa Ellis, Political Philosopher, Otago University. She commented on some aspects leading to the rise of the Nazi’s in 1930’s Germany. The racist hatred of Nazis is reflected in some modern extremist organisations. Ms Hannah and Professor Ellis focus on the Far Right but similar racist hatred is expressed in other ideologies represented by Al Quaeda or ISIS.

The Stuff documentary “Fire and Fury” – which I have written about here – dealt with the rise of disinformation and the way in which that led to radical and violent action and extreme expressions of hatred especially towards politicians.

The very clear message from these sources is that disinformation and racial hatred or hate speech are two sides of the same coin. According to Ms Hannah they are inextricably intertwined. One inevitably leads to another. It seems that any discussion of disinformation ultimately ends up in a consideration of hate speech or extremist speech.

In her address to opening of New Zealand’s Hui on Countering Terrorism and Violent Extremism – He Whenua Taurikura the Ms Ardern made a similar association between disinformation and violent extremism. I discuss this in detail below.

It is for those reasons that I conflate disinformation and hate speech as both worthy of consideration in a discussion about freedom of expression.

1 November 2022 – Web of Chaos – TV 1

This TV programme was described as “A deep dive into the world of disinformation, exploring why it’s spreading at pace throughout Aotearoa and the world, with specialists warning of striking consequences for social cohesion and democracy.”

In many respects, both in the manner of presentation and the content presented it bore a close relationship to the “Fire and Fury” documentary put out by Stuff. It starts with a recognition of the way in which online platforms can enable communities but then rapidly descends into a critique of what is described as cultish behaviour.

Kate Hannah was joined by Dr. Sanjana Hattotuwa, also of the Disinformation Project and assisted by David Farrier, described as a journalist and podcaster. Farrier tracks the development of Internet communication from the early days of discussion groups to the current world of social media platforms and algorithm driven content.

A fair section of the programme focusses upon the Wellington Protests of February – March 2022, covering the same material as “Fire and Fury” and expressing similar concerns about perceptions of violent radicalism or extremism. A concern by Dr. Hattotuwa is that the Internet provides a means of communication and connection between previously isolated radicals. He describes it as the algorithmic amplification of psychosis.

Although it is not clearly explained there is ample evidence to establish that social media platforms use algorithms in the background. These algorithms are designed to track the search or interest patterns of a user and then provide more information of a similar type. The problem is that as the user follows a particular interest, more and more information associated with that interest will be provided. This can be troublesome if the users’ interests are oriented towards violence or extremism. More problematic is the situation where a user may hover around the edges of extremist content but be served up more and more content of that nature.

Both Dr Hattotuwa and Ms Hannah immerse themselves in the vast amount of what comprises misinformation, disinformation and radical extremism online.

 Dr Hattotuwa subscribes to 130 Telegram channels and groups. He concedes he does not read everything that comes across his screen. Because of the way he organizes the information, he claims that he gets an insight into the mindset of the people who frequent the channels.

Dr Hattotuwa discussed what he calls toxic information and commentary including material directed about the Prime Minister. What was extraordinary was the suggestion that this toxic informational landscape was being used by 350,000 New Zealanders – all grooming and harvesting. Dr Hattotuwa emphasizes “It is here. It is amongst you” (“Web of Chaos” at 29.30). No evidence is offered to support either the numbers or the assertion.

Ms Hannah expressed concerns about death threats that she received and records the ritualistic washing of hands she undertakes before she examines archival material – a form of symbolic disengagement from reading unpleasant material.  She does the same investigating information on the computer. Dr. Hattotuwa describes how he has two showers a day to symbolically wash away the detritus of the online material he has been viewing. These actions on the part of two individuals who are meant to be carrying out dispassionate and objective research is interesting if only for the level of subjectivity it introduces.

Marc Daalder – reporter on Technology and the Far Right which must be a clear indicator of other than an objective perspective – suggests that although there may not be funding of extreme groups in New Zealand the Internet allows the importation and availability of this material.

Ms Hannah suggests that groups are using New Zealand as a laboratory for disinformation strategies to see if they work.

The documentary offers no solutions other than to have Professor Ellis observe that today’s Digital Natives are less likely to be taken in by mis/disinformation and Conspiracy theories. She holds out some hope for the future.

What the documentary does do is to further enhance the aura of fear that was generated by the “Fire and Fury” piece, identifying what is perceived as a problem but leaving the door open as to solutions.

The conflation of disinformation with hate speech suggests that whatever proposals there may be for restricting or limiting hate speech should be applied equally to disinformation and possibly even misinformation. This would result in a significant limitation upon the freedom of expression.

Ms Hannah and Dr Hattotuwa expressed their views in the “Fire and Fury” documentary as well as the “Web of Chaos” documentary. They are entitled to express their views. My suggestion is that those views should be approached with caution. Although they may be able to point to evidence of what they describe as mis/disinformation, the way in which they interpret that evidence gives me some cause for concern.

Certainly they are neither dispassionate nor objective about their topic. This is evidenced by the reactions that they have to the content of the material that they view. They clearly are responding subjectively to it. They make value judgements rather than empirical or descriptive ones.

One astonishing connection was made by Ms Hannah to which I have referred above. In her discussion about connection between white nationalism and the slide towards extremism she said that an identifier of the groups of which she was critical involved the “advocacy of rights to things like free speech.” (My emphasis)

I trust Ms Hannah does not stand by that generalization. The implication is clear. If one is an advocate of rights such as free speech, one is a right-wing extremist, supporting white nationalism or white supremacy.

That conclusion cannot be supported by the facts. Those who advocate liberty are not extremists. Those who advocate freedom of expression are not far-right wing. For example, an examination of the Council of the Free Speech Union reveals some commentators who occupy a position on the Left of the political spectrum.

Ms Hannah’s sweeping generalisation does neither her argument nor her credibility any good. Dr Hattotuwa’s unsupported assertion that 350,000 subscribe to the toxic informational network does little for dispassionate analysis or objectivity.

Indeed, examples such as this cause one to examine with a greater critical lens, the assertions and validity of material that emanates from the Disinformation Project.

Indeed the whole tone of the “Web of Chaos” documentary had a whiff of hysteria to it. Suggestions of a far-Right conspiracy peddling disinformation with the objective of destroying democracy echo the themes underlying “Fire and Fury”.

This was my conclusion on that documentary

What the Fire and Fury documentary seeks to do is re-channel that fear to a form of opposition to and distrust of the contrarian movement. But after viewing the documentary I was left with an uncomfortable feeling. In all the talk about the weird conspiracy theories put about by the contrarians perhaps the underlying theme of the documentary is a conspiracy theory itself and it seemed to come from Kate Hannah who is one of the heads of the Disinformation Project. She implies that the real threat to democracy comes from a few people given to euphemistic language who make no secret of their views, who are openly all over social media, making no secret of their views and who are well known to Police and the Security Services. Do we really need to fear this vocal minority.

Perhaps Fire and Fury is an example of a mainstream media-based conspiracy theory based on fear and should be treated as such. Or perhaps it is rather a tale told by an idiot, full of Sound and Fury signifying nothing.

One writer described “Fire and Fury” as an example of agitprop. I am driven to agree. I ascribe the same word to the “Web of Chaos” documentary.

2 November 2022 – A Question of Justice – Hate Crimes

The documentary programme “A Question of Justice – Hate Crimes” was the fourth in a series which examined aspects of the New Zealand justice system. Earlier episodes focused on the role of victims in the system, the over-representation of Maori in the criminal justice system and whether there should be degrees of the crime of murder.

The style of the series was to take a case or a couple of cases as exemplars of a problem and then carry out an investigation focusing on the issues raised by those cases.

The episode on hate crimes focused on the Christchurch mosque attacks and the killing of Jae Hyeon Kim by white supremacists. The programme examined the nature of hate crimes and the proposals by the Royal Commission on the mosque attacks surrounding hate speech.

The documentary used an “investigative team” approach who reported back and developed an itemized set of problems or shortcomings and then examined possible solutions. Each episode focused on a certain case or cases.

The investigators themselves acted as reporters and were clearly neutral. Occasionally questions about shortcomings in the system might arise but these were stratagems for further lines of inquiry rather than criticism or advocacy for a particular point of view or outcome.

Documentary maker Bryan Bruce who leads the series said of the style of the show:

“I try not to go into any investigation with a ‘stance’. What I try to do is formulate questions that hopefully will get to the core of an issue. Then I talk to a whole lot of people wiser than me to try and find the answer”

Speaking of the first programme in the series about victims, Bruce observed:

“If I had to pick one thing that surprised me, it would be that I had always wrongly assumed the State prosecutes an offender to get justice for the victim. In fact, the prosecutor prosecutes the offender on behalf of the Crown and no one actually represents the victim in court… and that’s something I think we need to look at.”

Bruce stated that the overall purpose of the series was to use

“case studies to examine the law by which we are all bound. Viewers, I hope, will find it engaging but the purpose in making the series was not to produce sheer entertainment.”

The tone of the series was more that of the traditional documentary. It was generally dispassionate and objective and helped to identify problems and at time suggesting possible solutions without advocating any particular outcome.

In this respect the approach to hate speech differed from that of “Wed of Chaos” or “Fire and Fury”. In many respects the “Question of Justice” episode benefitted from a more measured and less emotional approach.

Rather than use dramatic footage and video tricks, it focused upon the nature of the problem and, although not specifically identifying it as such, the way in which the Royal Commission had addressed hate speech and the various tensions between freedom of expression and speech which incited hatred and violent action towards others. In this respect one was left with a sense that reason and objectivity predominated, and that some sense had been brought into the debate.

It would have been helpful if the documentary had detailed the solutions offered by the Royal Commission. I have written on the Royal Commission proposals here.

One of the matters that the Commission’s report was to abandon the use of the word “incite”. It suggested that the term “stirring up” was a better one. It described the way in which speech could potentially be transformed into action. However, the documentary closed by focusing on the term “incite”.

One thing that the documentary did not do was attempt to define “hate” or “hate speech”. In this respect it left and interpretative door wide open. It recognized the tension between freedom of expression and harmful speech. It acknowledged the difficulty in where to draw the line. But the wider association of “hate speech” and “disinformation” that has been touted by “Fire and Fury” and “Web of Chaos” remains.

31 October – 1 November 2022 New Zealand’s Hui on Countering Terrorism and Violent Extremism – He Whenua Taurikura

The focus of the hui was the prevention of terrorism and violent extremism. In her opening remarks, Prime Minister Ardern referred to threats to our security. Second and third on the list of the five top threats of most concern to New Zealanders was misinformation and hacking – a reprise of the concerns that she mentioned at the United Nations speech. She went on to say

• “Greater efforts are needed to detect dis-information campaigns and networks, and disrupt them, while calling out those that sponsor this activity. We are committed to working with communities, media, academia, civil society, the private sector – especially our social media platforms to counter the threat of disinformation, and I will talk about this and the Christchurch Call in the second part of my speech today.”

In discussing the Christchurch Call, Ms Ardern said:

“There must always be space for radical ideas; these are valued and vital in Aotearoa New Zealand as a free, open, democratic and progressive society.”

A reiteration of her acknowledgement of the importance of freedom of expression that she made at the UN

“However, when dehumanising and hateful ideas are part of ideologies that include hate and intolerance toward specific groups or communities, promoting or enabling violence, these may indicate a path toward violent extremism.”

To deal with this problem she itemized the importance of research the problems arising from the online environment upon which we are dependent and the importance of the international effort – the Christchurch Call.

Using the collective power of national governments who have joined the call the objective is to bring pressure upon technology platforms to change the online and societal landscape.

Ms Ardern then went on to talk about the development of a Strategic Framework for Preventing and Countering Violent Extremism, which includes solutions and approaches developed by society for society. A prevention framework includes a fund for preventing and countering violent extremism. The fund, over three years, will provide grants to civil society and community organisations to support them to deliver initiatives for building resilience to violent extremism and radicalisation.

Finally she stressed the importance of talking about national security, and in this respect the hui was addressed by SIS Director Ms Rebecca Kitteridge.

Ms Kitteridge made the following statement:

“Recognising a potential warning sign and then alerting NZSIS or Police could be the vital piece in the puzzle that ultimately saves lives.”

To that end the SIS has published a guide called “Know the Signs” to help identify terrorists. The Guide is directed towards violent extremism rather than non-violent forms of extremism. Ms Kitteridge suggests that if a person sees something that is “off” or that worries or concerns, the suggestion is to consult the guide and try and work out if the person is on the road to perpetrating an attack.

The guide lists 50 signs from the very obvious (like writing messages on a weapon) to a person who is developing an “us versus them” world view. The SIS is monitoring some 40 – 50 potential terrorists but now a new suspicious class has emerged – those driven by politics. Ms Kitteridge suggests that this could be motivated by the measures that the Government took over COVID or other policies that are interpreted as infringing on rights – what Ms Kitteridge describes as a hot mess of ideologies and beliefs fuelled by conspiracy theories.

It is clear that the publication of the guide means that the SIS recognizes that it cannot do their work alone and that they need the help of the public.

In the introduction to the Guide Ms Kitteridge states:

“I am asking all New Zealanders to look out for concerning behaviours or activities that could be easily observed, and to report them. You may be uniquely placed to see the signs, and to help NZSIS to understand the true threat an individual poses.”

Paul Spoonley obviously buys into the SIS proposal but sees it as a first step. He sees a problem in upskilling people to understand what it is that they are seeing.

So citizens are being encouraged to monitor friends, family, neighbours and those around them, and must be watchful for the “signs”. They must be upskilled to recognize the “signs”. This air of suspicion is grounded upon fear. This has echoes of the “Red Scare” in the USA between 1917 and 1920. The Red Scare was the promotion of a widespread fear of a potential rise of communism, anarchism or other leftist ideologies by a society or state.

There was a second Red Scare in the USA from 1947 – 1957 associated with the rise of McCarthyism and the fear of Soviet espionage in US Government agencies and the “witch-hunts” that followed. Fear and suspicion characterized both of these periods. History is repeating itself but on these shores.

The Fear Factor

When the COVID pandemic hit, the Government was able to obtain compliance with a draconian suspension of our rights and liberties. It did this within a context of a climate of fear. The fear was that if the restrictions were not put in place people would contract COVID and die.

The fear factor was a part of the Government strategy through to the vaccination programme, the mandates that were imposed and through until the so-called “traffic-light” system.

It became apparent, after the numbers began to subside, that the fears of death had been overstated. The “fear factor” was received with skepticism on the part of the public which was prepared to assume risk and take their own measures to protect their health and well being.

Now the fear factor has shifted. The shift has been a gradual one. Instead of the fear of disease and death, what is being advanced is a fear of attacks upon democracy and our way of life – the scare tactics that were applied in the US with the fear of the Communist menace and infiltration.

This narrative began during the pandemic and was highlighted during the vaccine mandates. Those who resisted the mandates – the anti-vaxxers – were viewed as a contrarian threat to the Government line that emanated from “the podium of truth.”

This has morphed into a fear of the erosion of democracy arising from disinformation. The likelihood of terrorism in our own backyard. The need for vigilance. An insidious vaguely identified threat to our way of life.

This fear is magnified by messaging from our politicians. It is suggested that the election next year will be a different one as politicians – at least from the Government – are afraid of walking the streets and canvassing for votes as they once did. An air of hostility is abroad – or at least that is the narrative.

The cultivation of this atmosphere of fear enables the Government to justify erosions of liberty. One example of this will be to target “hate speech” and its close relative, disinformation. A fearful public will be more willing to accept interference with the freedom of expression if it may be seen to address a problem that will supposedly lessen or reduce the fear.

There is a wider issue arising from the climate of fear. I have already addressed it in some detail in an earlier post entitled “Fear Itself”. In that post I conclude with a consideration of the vested interest of mainstream media in promoting the “narrative of truth”. I said there:

Finally it is of interest to observe how vexed the mainstream news media get with the issue of mis/disinformation. Because the warnings emanating from the Disinformation Project, the Chief Censor’s Office and the University of Auckland Centre for Informed Futures, the news media are quick to fan the flames of fear and perhaps overdramatise the significance of the message. But perhaps there is an unstated interest that the news media might have in campaigning against mis/disinformation. In the past they have been the organs of reliable information and their editing and checking systems ensure this.

The Disinformation Project study indicates that on 10 February 2022 misinformation (as they define it) overtook NZ Media for the first time. Perhaps mainstream media has some territory to protect in the contest for the information audience and in fact what they are doing is campaigning strongly against the purveyors of mis/disinformation not to alert the public or perform some altruistic public interest goal but to do whatever they can to protect their own turf, their position as the purveyors of “truth” (despite significant column inches dedicated to “opinion”) and, not least, their advertising revenues and income streams.

I also made some observations on the fear factor engendered by the agitprop “Fire and Fury” documentary. In that piece I said:

It is a matter of comment in mainstream media that some of the leading lights of Voices for Democracy and other contrarian groups are putting themselves forward for election in the upcoming local body elections. Some of them have done so before. None of them have so far been elected. Yet there is concern about contrarians exercising their democratic right to stand for election. As I understand it the availability of democratic process does not depend on the quality of your beliefs, although those beliefs may cause rejection by the electorate.

So where does this leave us. Certainly during the early days of the Covid-19 Pandemic the Government was able to prey on public fears of the outbreak of plague and imminent death to justify lockdowns and to enable the acceptance of discriminatory treatment of citizens based on their vaccination status. The initial response was unplanned but necessary. But we are past that now

What the Fire and Fury documentary seeks to do is re-channel that fear to a form of opposition to and distrust of the contrarian movement. But after viewing the documentary I was left with an uncomfortable feeling. In all the talk about the weird conspiracy theories put about by the contrarians perhaps the underlying theme of the documentary is a conspiracy theory itself and it seemed to come from Kate Hannah who is one of the heads of the Disinformation Project. She implies that the real threat to democracy comes from a few people given to euphemistic language who make no secret of their views, who are openly all over social media, making no secret of their views and who are well known to Police and the Security Services. Do we really need to fear this vocal minority?

Perhaps “Fire and Fury” is an example of a mainstream media-based conspiracy theory based on fear and should be treated as such. Or perhaps it is rather a tale told by an idiot, full of Sound and Fury signifying nothing.

Conclusion – What it Is is Becoming Clear

The debate about so-called “hate” or “dangerous speech” must take place in a calm and objective environment. I realise that this is a sentiment based more on hope than reality, for the subject is an emotive one.

But the debate must not take place against a backdrop of fear which may mean that the solutions proposed are more extreme than the problem itself.

The growing panic on the part of some of misinformation and disinformation feeds into the wider landscape of concerns about “messaging” and, as I have argued, seems to have fed into the “hate speech” milieu with calls for regulation.

Comments like “disinformation corrodes the foundation of liberal democracy” – made by Ms Ardern – add to the scaremongering, softening up the populace so that they become pliable and amenable to greater restrictions on the freedom of expression and ultimately their liberty. It won’t just be about “hate speech.” The net will become incrementally and subtly wider to catch other forms of dissident and contrarian opinion.

Indeed, as Thomas Jefferson said “eternal vigilance is the price we pay for liberty” (1817) but perhaps not the form of vigilance suggested by Ms. Kitteridge.   

We must be vigilant to ensure our liberty, and its foundation stone freedom of expression, is not further eroded.

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Postscript

The title of this post is taken from the first line of a song recorded by Buffalo Springfield in 1966 entitled “For What its Worth”. The lyrics follow:

There’s something happening here

But what it is ain’t exactly clear

There’s a man with a gun over there

Telling me I got to beware

I think it’s time we stop

Children, what’s that sound?

Everybody look, what’s going down?

There’s battle lines being drawn

Nobody’s right if everybody’s wrong

Young people speaking their minds

Getting so much resistance from behind

It’s time we stop

Hey, what’s that sound?

Everybody look, what’s going down?

What a field day for the heat

A thousand people in the street

Singing songs and they carrying signs

Mostly say, “Hooray for our side”

It’s time we stop

Hey, what’s that sound?

Everybody look, what’s going down?

Paranoia strikes deep

Into your life it will creep

It starts when you’re always afraid

Step out of line, the men come and take you away

We better stop

Hey, what’s that sound?

Everybody look, what’s going down?

Eroding Freedom of Expression

Introduction

There is an ambivalence in New Zealand towards freedom of expression. Freedom of expression is guaranteed in the New Zealand Bill of Rights Act 1990. It guarantees not only the expression of information – the outward flow – but also the receipt of information – the inward flow.

The ambivalence has been growing. Freedom of expression has been pushed to the margins. Although, with a few exceptions, the Government has not actively or outwardly restricted freedom of expression it has nevertheless narrowed the scope of what may be considered acceptable.

The narrowing of scope has been led by the Prime Minister, Ms. Jacinda Ardern. Ms. Ardern is a trained communicator in that she holds a degree of Bachelor of Communication Studies (BCS) in politics and public relations.

Public relations is the practice of managing and disseminating information from an individual or an organization – in her case the Government – to the public in order to influence their perception. Ms. Ardern has done this very successfully. But in managing and disseminating the Government message she has been very careful to ensure that contrary views, criticism and contradiction are pushed to the sideline, so that those views are diminished and devalued and are of no account.

In this piece I trace the trajectory of the erosions of freedom of expression and the growth of ambivalence towards the expression of contrary opinions. I start with the Christchurch Call – perhaps a curious and non-contentious beginning but one that, as it has progressed, has chilling consequences for freedom of expression. I follow with the “sole source of truth” declaration and then embark upon an excursion into the validation of discrimination as an example of the blasé and contemptuous attitude of the Prime Minister to those who chose not to be vaccinated and who, by implication, express a contrarian perspective. I shall conclude with the latest example of Ms. Ardern’s erosion of the freedom of expression when she addressed no lesser a forum than the General Assembly of the United Nations.

 The Christchurch Call

I have written elsewhere about some of the problems with the Christchurch Call. The call to regulate content online is a difficult one as I have pointed out elsewhere.  I see this as a starting point for what appears to be an ambivalence or a relativistic approach towards freedom of expression.

The Christchurch Call is a community of over 120 governments, online service providers, and civil society organisations acting together to eliminate terrorist and violent extremist content online. With that objective there can be little dispute. The difficulty is that extremist content, abhorrent though it might be, should still be allowed a voice as long as it does not advocate imminent harm to people or property. For a discussion of assessing whether expression should be stifled or censored see here.

The Christchurch Call has noble goals but there are a number of concerning features about it.

1. It is government led – the principal drivers for the Call are national governments. Whilst preventing terrorism is necessary for the safety of civil society, such projects may develop “mission creep” and although there is a recognition of the importance of the freedom of expression, “extremism” or “extremist speech” are slippery concepts and depend very much upon the eye of the beholder and the ear of the listener.

• As an example of the issue of “mission creep” the scope of the areas of concern for the Call are expanding to include algorithms, radicalization and gender. The targets of extremism have been expanded to women, LGBTQIA+ communities, youth, and intersectional communities – quite a reach beyond the terrorist lone wolf shooter or bomber and a clear indicator that what the Call is really about is “hate speech.” I have discussed whether “dangerous speech is a better term and how it should be dealt with here and here.

The Call seeks to achieve a “safer Internet” and has enlisted not only national governments but private organisations and some of the tech platforms.

The Call states that

“the future of the internet and the future of our free, open, societies are intertwined. As we look ahead our legacy must be a free, open, secure and interconnected global internet as a force for good, a place where human rights are promoted and upheld and where technology contributes to social mobility and empowerment for all.”

These are laudable goals but the subtext is one of overall control and more importantly overall control of a communications medium. And such control must necessarily impact upon freedom of expression.

The final paragraph of the 2022 Communique issued by Ms Jacinda Ardern and M. Emmanuel Macron is a chilling example of the possible “mission creep” to which reference has already been made.

“Ahead of the Paris Peace Forum, New Zealand, France, and other Call community members with an interest will consider some of these related issues – including disinformation, harassment, abuse, and hatred online, and issues affecting youth – to understand how we might apply what we have learned working on the Christchurch Call, where we can support and engage on related initiatives such as Tech for Democracy, the Summit for Democracy, the Freedom Online Coalition, the Declaration for the Future of the Internet, the Aqaba Process, the Global Partnership for Action on Gender Based Online Harassment and Abuse, the Global Partnership on Artificial Intelligence, and the International Call to Stand up for Children’s Rights Online, and where there is multistakeholder interest in new work programmes separate to the Call.” 

Clearly the Call methodologies and approach are intended to expand to other areas and issues that are distinct and separate from the central goal of terrorism and extremist content that advocates violence.

This may not amount to a direct assault upon freedom of expression but it demonstrates the willingness with which State and Government actors and representatives are prepared to erode and whittle away freedom of expression from the margins. The use of generalized language such as “extremist” without a clear definition means that, as Humpty Dumpty said in Alice Through the Looking-Glass a word “ means just what I choose it to mean—neither more nor less.”

The Single Source of Truth

On 2^nd September 2020 the Prime Minister of New Zealand, Ms Jacinda Ardern said to the Parliament

“I want to send a clear message to the New Zealand public: we will share with you the most up-to-date information daily. You can trust us as a source of that information. You can trust the Director-General of Health. For that information, do feel free to visit at any time—to clarify any rumour you may hear—the covid19.govt.nz website. Otherwise dismiss anything else. We will continue to be your single source of truth. We will provide information frequently. We will share everything we can. Everything else you see – a grain of salt.”

Although this pronouncement was made in the context of information about the COVID-19 pandemic it is clear that it goes much further.

The levels of meaning that can be drawn from this are as follows:

• You don’t need any other information – only ours
• Don’t listen to anyone else on the topic – dismiss anything other than our messaging – take it with a grain of salt
• We are the single source of truth – an echo of Orwell’s Ministry of Truth
• If anyone else expresses a point of view dismiss it (effectively silencing contrary points of view)

This statement discourages any sort of debate, any sort of discourse. Although the freedom of expression protected by the Bill of Rights Act 1990 guarantees the right to impart and receive information, the suggestion that any other person may be able to contribute to the debate is eliminated and the right is negated by the suggestions that no other information is needed apart from that of the State whose pronouncements are “truth” and any dissent should be dismissed.

It is certainly dangerous to the governed in a democracy for any politician, let alone a Prime Minister, to declare that they, or their Government, are a single source of truth.

The Validation of Discrimination

Once the vaccination programme got underway in New Zealand Ms. Ardern endorsed the emergence of a de facto two-tier society.

During a video interview, the PM admitted that the then rules granted vaccinated citizens more freedoms. Asked by a journalist from the New Zealand Herald who asked:

“You’ve basically said, and you probably don’t see it like this, but two different classes of people if you’re vaccinated or unvaccinated. If you’re vaccinated you have all these rights.” Ardern responded enthusiastically, nodding along as she replied: “That is what it is.” She continued:

“If you are still unvaccinated, not only will you be more at risk of catching COVID-19, but many of the freedoms others enjoy will be out of reach. No one wants that to happen but we need to minimize the threat of the virus, which is now mainly spreading amongst unvaccinated people.”

This from a a self-proclaimed believer in the “values of human rights, social justice [and] equality”

What was concerning was that there were many who actually endorsed the two-tier approach, creating division and hostility against those who were unvaccinated or chose not to be. Animus against anti-vaxxers and contrarians began to grow.

Although this may not have a lot to do with freedom of expression the divisiveness that the two-tier approach caused had the effect of marginalizing anyone who expressed a contrary view.

Misinformation and Disinformation

Coincidentally there developed over the pandemic emergency a greater use of two terms – misinformation and disinformation. These became predominantly news media shorthand for any statements that departed from the received wisdom of the government.

Misinformation meant information that misled. Disinformation was false information that the disseminator intended to mislead – in other words lies.  The problem was and still is that those words lack certainty. It seems that they mean what people using them want them to mean and consequently they have taken on a perjorative aspect.

In June 2021 the Classification Office, headed by the then Chief Censor Mr David Shanks, released a paper entitled “The Edge of the Infodemic: Challenging Misinformation in Aotearoa”. It argued that misinformation\disinformation (neither term defined in the paper) was a problem, that it came primarily from Internet based sources, that when people rely on misinformation to make important decisions it can have a harmful impact on the health and safety of communities and can also affect us on a personal level, contributing to anxiety, anger, and mistrust.

It argues that that we should be looking at solutions that work to increase access to good information; lower the volume of misinformation; improve resilience to misinformation; and build levels of trust and social cohesion that can serve as a counter to the more harmful effects.

That this document emerged from the Classifications Office is something of a concern. The Classifications Office is involved in the administration of the Films, Videos and Publications Classification Act 1993. That Act allows for censorship of films, videos, publications, and online content in certain limited and restricted circumstances.

It seemed to be part of a concerted effort on the part of the Classifications Office to expand the scope of censorship and information control currently enjoyed by the Classification Office – another example of “mission creep”.

One of the issues that features in the paper is the importance of social cohesion. At first glance this concept is unremarkable. It suggests societal togetherness in the pursuit of common goals.

The problem is in what lies beneath the term. I would suggest that what it really suggests is conformity not so much in behaviour but in thought. The term implies collective agreement or acceptance of a particular narrative – in this case the sole truth that flows from the State.

Thus any expression of disagreement or dissent is seen not only as an affront to the ”truth” propagated by the State but as an assault or an attempt to erode the monolithic structure of “social cohesiveness” or the complacent conformity that the State requires.

Lest it be thought that I am focusing on a single example – “The Edge of the Infodemic” paper – at an Otago University conference about “Social Media and Democracy” in March 2021, Mr Shanks told the conference the way we regulate media is not fit for the future.

“We can be better than this. I think there’s some very obvious moves that we can do here to make the current regulatory system and framework more coherent for a digital environment.” [1]

Before that, in October 2019 Mr Shanks claimed that an entirely new media regulator may be required.[2]

At the Otago University Conference were two representatives of the Disinformation Project – the Director, Ms. Kate Hannah and Dr. Sanjana Hattotuwa. The Disinformation Project has been observing and analysing open source, publicly available data related to Covid-19 mis- and disinformation on social media, mainstream media, and in physical and other digital forms of information and knowledge dissemination.

From August 2020, the Project expanded its brief (yet more “mission creep”) beyond Covid-19 to consider mis- and disinformation ecosystems in New Zealand, including the seed and spread of ‘dangerous speech’, hateful expression, and criminal behaviour. The scope of the study involved looking at global trends, themes, narratives, and actors who influence online harms in New Zealand.

Although the Disinformation Project is not a State Actor, its commentary and thrust is directed towards material that is considered harmful because it is contrary to the received wisdom that is a part of the Government message. In this way, perhaps unintentionally, the Disinformation Project becomes complicit in the Government as the sole source of truth narrative.

To further emphasise the role of the Disinformation Project, the focus seems to have shifted from mis/disinformation about COVID-19 issues into the wider political scene. Dr Hattotuwa of the Disinformation project in commenting on the role of Voice for Freedom observed that the group skilfully avoids attempts to regulate mis and disinformation and suggests that Voice for Freedom represents a threat to democracy[3] Clearly from this comment the Disinformation Project is suggesting that there should be some form of regulation of mis or disinformation. In the meantime, as Stephen Judd of Fighting Against Conspiracy Theories Aotearoa (FACT), commenting upon contrarian candidates for local body elections, suggests

“People who hold a set of beliefs about the legitimacy of our institutions, and who are conspiracy theorists and who hide that because they think it would harm their chances of being elected, aren’t operating in good faith.

“So, one of the best things we can do is provide more publicity and exposure to candidates because that ultimately is what leads the public to have a fair view of what they are about.”

Thus we have developing a number of strands that seem to be directed towards suppressing or marginalizing dissent or disagreement. Although the Disinformation Project casts a sinister shadow over the terms, and although the Classification Office may see misinformation and disinformation as having potential objectionable qualities, the reality is that every expression of disagreement or dissent, every expression of a contrary view or opinion, every expression of a challenge to the State message is a part of the normal discourse of society. Disagreement is a fundamental aspect of being human. We all have differing points of view, beliefs, values and standards. And it is part of the democratic tradition that we should be able to express those views.

Of course, associated with that is the fact that those who disagree with us must have the right to express that disagreement. And so the cacophony of debate and the exchange of points of view takes place.

It may be that some points of view are strongly contrarian. Some points of view may be wrong-headed or fly in the fact of reason. But they have a right to be expressed and the speakers have a right to be heard in the same way that those to whom they are speaking have a right not to listen.

The problem is that from the State’s point of view, disagreement and dissent are being treated as inimical to the interests of the State. No longer can dissent be tolerated. It is seen as a weapon of opposition – which it frequently is – but so much so that such opposition is characterized as a war with the State.

One of the justifications for the firm line that has been taken by the State arises from the events of February – March 2022 – the Wellington Protest.

The Wellington Protest

The Wellington Protest and the occupation of the grounds of Parliament House in February-March 2022 represented the culmination of a number of contrarian protests against COVID 19 restrictions that had been taking place over the preceding months. The occupation and its violent end have been well covered in the media and do not need rehearsing here. Many people supporting the protesters drifted on and off the site but once the protest had been dispersed it became a symbol for everything that was bad about mis/disinformation and the expression of contrarian views.

Stuff presented a documentary – Fire and Fury – which represented the protest and those involved in a very unfavourable light. I have already commented on the unbalanced approach taken by the documentary, and that it seems to be an example of agitprop but it demonstrates a lack of tolerance about contrarian speech that seems extraordinary for a news media outlet that should be presenting a more balanced view.

The contrarians would suggest that perhaps aided and assisted by a significant influx of Government money to support mainstream news media and guard against mis/disinformation that Stuff and its opinions have been bought and sold. I could not comment on that for I have no evidence to support such an assertion.

However, from the Stuff perspective, the Wellington Protest and the Fire and Fury documentary has become a weapon with which to beat contrarians. Thus those who were standing for local body positions recently who had attended the Protest were identified without more – no examination of their policies; no opportunity for them to provide an explanation for their actions; no evidence of any sort of balance at all. Yet the article making some of these assertions, together with another which identified those who were and were not successful in local body elections were anything but balanced and afforded the contrarians no opportunity to reply or comment.[4] Perhaps the reason for this is that the authors were wary that to ask for comment meant giving the contrarians a platform.

The Wellington protest added fuel to Ms. Ardern’s approach to freedom of expression. She claimed, without identifying any evidence, that there was foreign influence involved in the misinformation. She said:

As we go through a process of accessing what is it that has allowed the growth of misinformation in this country and how do we address that, we will be at pains to ensure that it never becomes an excuse for the violent acts that have happened.

This provides a backdrop to Ms. Ardern’s speech to the United Nations.

The War on Disagreement

The “war with the State” approach to dissent and to disagreement was epitomized by Ms. Ardern, speaking at the United Nations in September 2022.

At the U.N. General Assembly on Friday, Ms. Ardern announced a new initiative “to help improve research and understanding of how a person’s online experiences are curated by automated processes,” saying the work, done in partnership with companies and non-profits, will be “important in understanding more about mis- and disinformation online – A challenge that we must as leaders address.”

It cannot be co-incidental that there had been a meeting of the Christchurch Call participants in New York shortly before Ms. Ardern’s speech.

In the course of the speech she made reference to the way that contrary speech can inhibit or frustrate progress in the implementation of Government policy.

She asked:

“After all, how do you successfully end a war if people are led to believe the reason for its existence is not only legal but noble? How do you tackle climate change if people do not believe it exists? How do you ensure the human rights of others are upheld, when they are subjected to hateful and dangerous rhetoric and ideology?”

She then moved on the discuss how speech and contrarian speech can be used as a weapon. By characterizing the “weapon-like” qualities of speech she shifts the focus from speech as a means of communicating contentious ideas to speech as a contrarian weapon against established thinking or government objectives.

Of course, this characterization of speech demonizes the speaker. It suggests that rather than a means of resolving difference and reaching consensus – or even recognizing that Government policy may not be the desire of the governed – there is a war between contending ideas. And that implies that at the end of the war there must be a winner. As far as Ms. Ardern is concerned, that winner must be the State.

Such a perspective completely ignores that the fact that governments govern with the consent of the governed. If the majority of the governed do not consent, is it suggested then that they are at war with their government?

She then expanded on the “weapons of war” metaphor, at the same time criticizing those who engage in contrarian speech.

“The weapons may be different but the goals of those who perpetuate them is often the same. To cause chaos and reduce the ability of others to defend themselves. To disband communities. To collapse the collective strength of countries who work together,”

But debate is the answer to contrarian speech. If speech is a weapon that may be used in a disruptive sense, that disruption can be answered by counter speech. At least with speech there is an equality of arms, and Ms. Ardern, as a graduate in communications studies, would be and is well skilled in massaging the message.

But she chose a different path. Without explicitly saying so she suggested that there were methods of countering speech that were other than debate, and clearly the subtext of the remarks that follow is directed towards the suppression of contrarian speech.

“But we have an opportunity here to ensure that these particular weapons of war do not become an established part of warfare. In these times, I am acutely aware of how easy it is to feel disheartened. We are facing many battles on many fronts…But there is cause for optimism. Because for every new weapon we face, there is a new tool to overcome it. For every attempt to push the world into chaos, is a collective conviction to bring us back to order. We have the means; we just need the collective will.”

This is the language of authoritarianism although it is expressed in more mellow terms. Given Ms. Ardern’s communication credentials she is able to make authoritarianism look acceptable. But it is, nevertheless, typical of the mindset of the tyrant.

Ms. Ardern is possessed of a high sense of the righteousness of her cause. She does not debate ideas. She rejects them or refutes the premises of opposition without engaging in debate. She therefore avoids confronting the uncomfortable reality that she may be wrong. And by rejecting and refuting she adopts an air of superiority that views dissent as evil and, because it has become “weaponized” it is too dangerous to allow.

It is perhaps evidence of that sense of righteousness that Ms. Ardern went to the UN and called upon the General Assembly, looking for support for her cause. She called upon the nations present to exercise their collective power to deal with this new weapon of war – contrarian speech.

But deeper than that what Ms. Ardern is talking about is ideas. What she is concerned about, what has been “weaponized” is the way that those ideas have been expressed. Ideas that conform with hers are benign. Ideas that conflict with hers must be stamped out. The days of debate are over.

Her speech focused on the alleged scourge of “mis and disinformation online”.

We must tackle it, she said. She acknowledged some people are concerned that “even the most light touch approaches to disinformation” could come across as being “hostile to the values of free speech”.

She is certainly right there. Her approach is indeed hostile to the values of free speech.

When she moved into the “weapons of war” metaphor she was essentially saying that war is speech. Words wound. Ideas kill.

Politicians and those who support the “official position” and who wring their hands over “misinformation” or “disinformation” are usually just talking about beliefs they don’t like. Mis\disinformation are words that are rendered meaningless by misuse.

Ms. Ardern gave climate-change scepticism as an example of one of those “weapons of war” that can cause “chaos”. “How do you tackle climate change if people do not believe it exists?” she asked.

Those who critique climate-change alarmism, those who call into question the ecolobby’s claims that billions will die and Earth will burn if we don’t drastically cut our carbon emissions, is an entirely legitimate political endeavour, contrarian though it might be. However, in treating it as a species of Flat Earthism, as “disinformation”, the new elites seek to demonise dissenters, to treat people whose views differ to their own as the intellectual equivalent of warmongers.

Activists, whose hype about the end of the world could genuinely be labelled misinformation, are never branded with that shaming word. That’s because misinformation doesn’t really mean misinformation anymore. It means dissent. Deviate from the consensus on anything from climate change to Covid and you run the risk of being labelled an evil disinformant.

Indeed, one of the most striking things about Ms. Ardern’s speech was her claim that if the elites ignore “misinformation”, then “the norms we all value” will be in danger. But for her it is dissent that is the enemy. Ms.Ardern does not want a single voice raised against her.

This is the most common cry of the 21st-century authoritarian – that contrarian speech can have a destabilising and even life-threatening impact, especially if it concerns big crises like climate change or Covid-19.

So “climate deniers” are a threat to the future of the human race and thus may be legitimately silenced. “Lockdown deniers” threaten to encourage the spread of viral infection and thus may be legitimately gagged. The spectre of crisis is cynically used to clamp down on anyone who dissents from the new global consensus.

To see how authoritarian the desire to clamp down on “misinformation” can be, it is worth considering other world leaders who used the platform of the UN to call for tougher controls on speech. Muhammadu Buhari, the ruler of Nigeria, focused on his nation’s “many unsavoury experiences with hate speech and divisive disinformation” and joined the calls for a clampdown on the “scourge of disinformation and misinformation”. Russia’s Foreign Minister, Sergey Lavrov, bemoaned the “disinformation” against his nation. Those supporting Ms. Ardern for standing up to “fake news” are implicitly cheering Buhari and Lavrov, too. They are as one with her when it comes to chasing “misinformation” from the public sphere.

Freedom of expression isn’t only threatened by obvious strongmen – like the rulers of Nigeria or the theocratic leaders of Iran. Ms. Ardern’s UN speech exposed the iron fist of authoritarianism that lurks within the velvet glove of liberal kindness.

Conclusion

In this piece I have mapped a trajectory of gradual erosions of freedom of expression in New Zealand. It is the job of an historian to look at the evidence and interpret it. The evidence in the matter or erosions of freedom of expression in New Zealand starts with the Christchurch Call. The initial target was discrete although the widening of the scope to include extremist speech was modified by the word “violent”.

It was at this time concerns were expressed about “hate speech” although that particular project, signalled by the Government as a matter of concern, appears to be of lesser importance than it was following the events of March 2019 and the Royal Commission Report.

A shift in focus came with the “single source of truth” comments by Ms. Ardern. Although these were outwardly intended to inspire confidence in the truth of the Government messaging, it nevertheless marginalized expressions of contrary opinion and in that respect ramped up the anti-contrarian messaging, consigning it to a “non-truth” category.

The messaging about truth, “non-truth” and the issues of mis and disinformation were picked up by various agencies such as the Disinformation Project and elements of the mainstream news media, reinforcing the Government messaging about the potential damage to Government programmes and policies.

The Wellington Protest fuelled Ms Ardern’s speech at the UN which concludes this discussion and it tells two stories. The first is the chilling of freedom of expression. The second is evidence of the chilling of freedom of expression. International news reports have expressed concern and indeed outrage at Ms. Ardern’s hostile attack on freedom of expression[5]. Has there been such concern expressed here in New Zealand by a news media that is the beneficiary of many millions of Government funding? The rest is silence.

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[1] “Battle Against Online Harm beefs up censor’s power” Mediawatch, 21 March 2021 https://www.rnz.co.nz/

national/programmes/mediawatch/audio/2018788055/battle-against-online-harm-beefs-up-censor-spower

(last accessed 3 July 2022).

[2] https://www.stuff.co.nz/technology/digital-living/116776465/chief-censor-david-shanks-says-an-entirely-new-media-regulator-may-be-needed

[3] Charles Mitchell and Andrew Vance “Around 3000 people are running for council, more than 200 have promoted false information or conspiracies” Stuff 8 October 2022 Around 3000 people are running for council, more than 200 have promoted false information or conspiracies | Stuff.co.nz

[4] Andrea Vance and Charlie Mitchell  Stuff 9 October 2022 https://www.stuff.co.nz/national/politics/local-body-elections/130114188/fewer-than-a-dozen-disinformation-candidates-elected-to-councils

[5] Rita Panahi “’Fake Queen of Empathy’:Ardern’s UN speech described as ‘disturbing, dystopian and dangerous’” Sky News 3 October 2022 https://www.skynews.com.au/opinion/rita-panahi/fake-queen-of-empathy-arderns-un-speech-described-as-disturbing-dystopian-and-dangerous/video/b8a7865217f1325e59884dd9a23b4c7b

The Times view on Jacinda Ardern and Liberty: Unfree Speech  – The Time 3 October 2022 https://www.thetimes.co.uk/article/the-times-view-on-jacinda-ardern-and-liberty-unfree-speech-bqnqzp7mt

“Woke Queen Ardern wages war on free speech” The Australian 3 October 2022 https://www.theaustralian.com.au/subscribe/news/1/?sourceCode=TAWEB_WRE170_a_GGL&dest=https%3A%2F%2Fwww.theaustralian.com.au%2Fcommentary%2Fwoke-queen-arderns-war-on-free-speech%2Fnews-story%2Fb221012efa2dde6ab6e332f5c85626b9&memtype=anonymous&mode=premium&v21=dynamic-groupa-control-noscore&V21spcbehaviour=append

“New Zealand PM Jacinda Ardern condemned for comparing free speech to ‘weapons of war’ at UN” New York Post 29 September 2022 https://nypost.com/2022/09/29/new-zealand-pm-condemned-for-calling-free-speech-weapons-of-war-at-un/

“New Zealand prime minister condemned for calling to regulate free speech as a ‘weapon of war’ at UN” Alexander Hall, Fox News 28 September 2022 https://www.foxnews.com/media/new-zealand-prime-minister-condemned-calling-regulate-free-speech-weapon-war-un

Deplatforming the Bard

Creative New Zealand in a bizarre – some might say uber-woke spasm – has refused to fund a Shakespeare festival for college students that has been running for 30 years. At the festival students perform parts of Shakespeare’s plays and gain insights and understandings not only of the Bards work and his contribution to the English language but also the way in which theatre and drama work.

What could possibly be the reason for this. Essentially it addresses the relevance of Shakespeare in a 21^st Century country that must decolonise, although I understood that decolonisation took place a long time ago when New Zealand became independent of Imperial Britain.

The Board of Creative New Zealand suggested that the festival’s genre is “located within a canon of imperialism and missed the opportunity to create a living curriculum and show relevance”. This is language that has all the hallmarks of obscurantist Wellington bureaucratese and fails to understand the way that Shakespeare actually works today.

Fortunately the festival will continue but without the $30,000 from the Arts Council.

Many of my generation remember Shax with anything but affection. We had his plays drummed into us year by year and had to know at least one play for School Cert and UE. For some his language was opaque. Having spent a number of years reading texts from the 16^th and early 17^th Centuries I can affirm beyond a shadow of doubt that the Bard’s language was crisp, clear and meaningful.

I am a Shakespeare enthusiast. I have a collection of all the BBC dramatizations on DVD together with a number of performances by others on DVD including Olivier’s “Henry V”, “Hamlet” and “Othello”, Zeffirellis’s “Romeo and Juliet” and “Taming of the Shrew” with Richard Burton and Elizabeth Taylor.

When we go to London a visit to the Globe or the Royal Shakespeare Theatre at Stratford is de rigeur. At the Globe we have seen “As You Like It”, “Julius Caesar” and “The Merchant of Venice”.

Not relevant, I hear you say.

In the first Act of “Julius Caesar” the great man makes his entrance through the audience. The cast takes up the chant “Caesar, Caesar, Caesar!” By the time he gets to the stage the whole theatre is on its feet cheering like a soccer crowd, totally immersed, totally involved in the performance. And so it continued.

Jonathan Pryce played a brilliant Shylock in “The Merchant of Venice” – a privilege to see such an accomplished performance. Most of my generation recall Portia’s speech from the trial scene of the “Merchant” but the scene itself is so much more and is relevant even today. How so? Because throughout the trial scene different theories of the way in which the law should be applied are advanced and considered. Racism and anti-semitism – as alive then as they are now – are clear. The trial would provide material for classes in legal philosophy as well as they way in which the law should be applied to all citizens.

Shakespeare’s plays speak through the ages. Hamlet’s procrastination still manifests itself today as a clog to decision-making and action. The ambition of Caesar is still with us. The racism endured by Othello and Shylock are still part of our daily lives. The ingratitude of children experienced by Lear is still a reality. The doomed lovers of Romeo and Juliet are not only manifested on the streets of New York in “West Side Story” but are experienced daily by those who would love and marry outside the expectations of their families.

I would understand if Creative New Zealand suggested that the language of a late Elizabethan playwright is difficult to handle but to suggest that his work is a “canon of imperialism” is an absurdity. Shakespeare was no imperialist (perhaps “Henry V” excepted) but speaks to us, as I have suggested, about aspects of human nature and the human condition.

In a rampant rush to discard anything associated with England and its contributions to the fabric of society, Creative New Zealand – unworthy of that title and of course a Government agency; why am I not surprised– seem to be more focussed upon woke issues of national identity and self-image whilst ignoring the timelessness of the creation of one of the world’s greatest poets and playwrights.

Concerning the Rings of Power and the Second Age

This is a first impression overview of the first four episodes of Amazon’s “The Lord of the Rings: The Rings of Power”.

The title of the production is interesting in itself. It incorporates the title of Tolkien’s best known work but in the second part defines the focus of the show that is intended to spread over a number of seasons.

The story-line covers the events of the Second Age of Middle-earth after the defeat of Morgoth. It deals with the relationship between the Elves, the Men of Numenor (the Edain) and the people of Middle-earth including the Harfoots who are a community of what could be described as proto-hobbits.

The material for the series is drawn from the Appendices to “The Lord of the Rings” and from hints and snippets that appear in the text of the book. The reason for this, and for the fact that no material is drawn from any other of Tolkien’s works (published posthumously) is because Amazon purchased the television rights only to “The Lord of the Rings” and “The Hobbit” and for these rights paid the Tolkien Estate the sum of about $250 million. This was quite a price to pay for the rights – for television only – to the material in the Appendices and the background material that may not have been used in Sir Peter Jackson’s movies of “The Lord of the Rings” and “The Hobbit”. The material “The Silmarillion”. “Unfinished Tales” and “The History of Middle-earth” was not included in the transaction.

The series, as the title suggests, focusses upon the rise of Sauron, the “Lord of the Rings” and of the making of the twenty Rings of Power. Although we are on episode four of eight of the first season, Sauron has not yet appeared in person but in the traditions of Tolkien’s story-telling is a dark rumour.

Galadriel, a Noldorin Elf of high lineage, is convinced that following the overthrow of Morgoth – the fallen Valar and Sauron’s overlord – that Sauron is still at large and ready to carry on the evil work of his master. The first episode opens as Galadriel, leader of the Elven armies of the North, seeks for Sauron in the frozen wastes of Forochel. There are hints of his presence – the occasional sign or icon associated with the evil one.

There can be no doubt that evil is a real presence in Middle-earth. To the South there are Men who sympathized with Evil and there are orcs who have embarked upon a building programme and who are also seeking a relic – a sword in fact –  which has been found by a young Southling named Theo.

What must be remembered is that this is an adaptation of hints of a story that appear in the Appendices and in the text of “The Lord of the Rings”. Liberties have been taken. Galadriel, who appeared in “The Lord of the Rings” as a powerful, wise but flawed Elven Queen, is in “Rings of Power” proud, haughty and impulsive but lacking in the hidden power possessed by the later Galadriel. Was this power conferred by the Elven Ring? I always was of the view that Galadriel’s power was natural.

The action takes place towards the end of the Second Age and one of the players who later falls under the thrall of Sauron and whose decisions led to the Fall of Numenor is already named – Pharazon, Chancellor to the Queen-Regent of Numenor, Miriel. At the end of the fourth episode the decision has been taken for the Edain, led by Galadriel and Elendil, to lead an expedition to Middle-earth.

The reality was that Numenor had involved itself in the doings of Middle-earth for some time, and Sauron’s rise and his physical manifestation preceded the events the subject of the series. In addition, by the time of Miriel and Pharazon, the Rings had been forged by Celebrimbor, Sauron had built Barad-Dur and had overrun and in turn been driven out of Eriador by a Numenorean expedition.

As I say, this is an adaptation and time-lines have been compressed. In the interests of telling the story and the constraints of the medium such liberties are understandable. Tolkien absolutists will be outraged. But then Jackson left out Tom Bombadil and the episode at Barrow Downs from the movie of “The Lord of the Rings”. Adaptation allows for many departures from the text – and admittedly, the text for the Second Age purchased by Amazon is limited indeed.

Perhaps what is more important is whether or not the series is true to Tolkien’s vision. Does it contain many of the underlying themes that are present in his other writing and especially “The Lord of the Rings”. In many respects the answer must be yes.

One of the characteristics of “The Lord of the Rings”, and indeed all of Tolkien’s writing, is its depth. The reader (or viewer in the case of the movies) quickly realizes that the action portrayed is a part of a longer and deeper story. This is consistent with Tolkien’s goal of developing a mythology for England and in line with his expressed theories about the creation of a Secondary World.

Even although we are in the thick of the action right from the start (although the first two episodes are rather pedestrian) we become aware that we are a part of a much deeper story. Hints of this depth come through from time to time. The title of the first episode “The Shadow of the Past” echoes the title of chapter 2 of Book 1 of “The Lord of the Rings – indeed to the very letter.

The Dwarves are suspicious of the Elves – there is a story there. Galadriel in Numenor recites her heritage and her origins which goes back thousands of years. She is one of the High Elves – one of the Great families.

Elrond explains his lineage to Prince Durin when he swears to keep the secret of mithril “I swear on the memory of my father, Earendil the Mariner” – He is the son of Earendil the Mariner who, wearing a Silmaril on his brow, crossed to Valinor and persuaded the Valar to contend against Morgoth. He could not return to Middle-earth but was set as a star by the Valar.

Later in episode four Elrond explains what it was that Earendil did.

“My father single-handedly sailed to Valinor and convinced the Valar to join the war and vanquish Morgoth. So great were his deeds that the Valar lifted him beyond the bounds of this world to forever carry the Evening Star across the sky.”

These hints appear in “The Lord of the Rings”. At the Council of Elrond, Elrond says

“Earendil was my sire, who was born in Gondolin before its fall; and my mother was Elwing, daughter of Dior, son of Luthien of Doriath”

and Frodo hears the poem of Earendil recited by Bilbo to the Elves in Rivendell. Earendil is described as

“for ever still a herald on

An errand that should never rest

To bear his shining lamp afar

The Flammifer of Westernesse”

This sense of depth is critical and is well-represented by Earendil for he is a link throughout the story. Not only was he responsible for the intervention of the Valar in the war of the Elves, Men and Morgoth but he is the father of two key characters.

The two sons of Earendil were given a choice. They could be mortal or accept the deathlessness that came with being an Elf. One of Earendil’s sons, Elros (later called Tar-Minyatur) elected to be mortal and was the founding King of Numenor. The other, Elrond, chose to be an Elf.

At the point in the story that Elrond reveals this to Prince Durin he connects with a distant and almost mythological past but also provides a link to the future that we read and see in the “Lord of the Rings”. Furthermore his daughter Arwen, who marries Aragorn in “The Return of the King” links back to the great intermarriages of Elves and Men – those of Beren and Luthien and Idril Celebrindal of Gondolin and Tuor.

I have focused upon Earendil for a reason. In my “The Song of Middle-earth” Chapter 8 is entitled “The Importance of Being Earendil”. He is a key figure – a link between the reality of life on earth – suffering, privation, hardship – and the Bliss of Valinor and the Undying Lands. He was born flesh and underwent apotheosis to virtual godhead and immortality. He is one of the living myths of Middle-earth and the star that shines upon his ship Vingilot (built of timber felled in Nimbrethil) as it sails the heaven is the wonderful and glorious light of a  Silmaril.

This link with a deep past and with a continuity for the future occurs from time to time within “The Rings of Power.” Another example can be found with the Tower of Watch in the Southlands that is abandoned by the Elves. (A northern equivalent may be found in Amon Sul or Weathertop in the Weather Hills in Eriador.) This is the tower where Arondir is based and where the people of the South village take refuge when the Orcs begin their rampage through the Southern Lands.

It seems that the Southern Lands are without a king who in fact is in exile in the form of Halbrand who rescues Galadriel after she casts herself into the Sundering Seas.

The king in exile is a familiar theme of myths and folk-tales. Indeed Aragorn in “The Lord of the Rings” provides an example. There are occasions when Halbrand (played by Charlie Vickers) displays similar behaviours to Aragorn (played by Viggo Mortenson in “The Lord of the Rings”) especially the way he give an upward and serious look. We know little of Halbrand but from snippets throughout the story the South Lands were protected by Elves (who are similar to Faramir’s Rangers) based in the Tower. What is effectively a demobilization takes place when the Tower is abandoned and many of the Elves depart for the Uttermost West. Yet there are still sympathizers with the Darkness dwelling in the South and the name of Sauron still conjures up terror.

I have already referred to Sauron as a rumour. This connects to the “Lord of the Rings” approach to Sauron who, along with the name of the Black Lands, Mordor, is even able to send shivers among the hobbits, safe in the Shire. In “The Lord of the Rings” a sense of evil is introduced not only by the tale that Gandalf tells Frodo in the chapter ‘The Shadow of the Past’ but by the visitations of the Black Riders (Nazgul) who introduce the reader to the real terror of Sauron’s evil.

By episode four of “Rings of Power” we have evidence of Sauron in the various icons that are present, from the map that Galadriel locates in the Western part of Numenor and from the hilt of the sword found by Theo and which becomes manifest when given blood. Interestingly the actor playing Sauron does not feature in any of the cast lists for “Rings of Power” which suggests that for this season at least he remains a rumour. It is doubtful that he can be named Annatar, the Lord of Gifts for he does not have that name in the material the rights of which were purchased by Amazon. That name for Sauron appears only in “The Silmarillion”.

The role of Adar (played by Joseph Mawle) has yet to become clear although he controls the Orcs of the Southlands and has Elvish ears. Whether he is a corrupted Elf or the Witch-King yet to be corrupted remains to be seen, although that said, the Witch-King was one of the Nine mortal men who fell under the sway of the Nine Rings. There is no doubt that Adar is at best a Sauron sympathizer and at worst one of the Dark Lord’s lieutenants.

The depth of the tale is also revealed when Galadriel introduces herself to the Regent Miriel and the Court of Numenor.

“Galadriel of the Northern Realm, daughter of the Golden House of Finarfin, Commander of the Northern Armies of the High King Gil-Galad’.

Prisoner though she might be there is no doubting that she is an elf of high lineage and power. She demonstrates this in episode four when she demands of Miriel to see the King Tar-Palantir.

“Then I have little choice but to ask for another, one of Numenor’s true ruler, your father the King”.

Once again Galadriel demonstrates a level of power and expectation and although she is confined in a cell, nevertheless she does get to see the King and also the Seeing Stone, the Palantir, which is in the King’s tower. This is one of the Seven Stones that accompanied Elendil and Isildur after the wreck of Numenor – “Seven Stars and Seven Stones and One White Tree”  – thus providing a link to the story line in “The Lord of the Rings”

The Harfoots – clearly proto-type hobbits, present an entirely different and interesting picture. The prologue to “The Lord of the Rings” gives us hint of their origins. They were wanderers dwelling between the eaves of Greenwood the Great and the Misty Mountains. Why they undertook the perilous crossing of the mountains into Eriador is not certain. Their own accounts (and they do have texts in “Rings of Power”) spoke of the multiplying of Men in the land and of a shadow that fell on the forest so that it weas darkened and its new name was Mirkwood.

Before the crossing of the Mountains the hobbits had divided into three different breeds. Harfoots, Stoors and Fallohides. The Harfoots were of browner skin, smaller and shorter, beardless and bootless. They preferred highlands and hillsides. The Stoors were broader, heavier in build and preferred flatlands and riversides. Fallohides were fairer of skin, taller and slimmer, loversd of trees and woodlands.

The Harfoots had much to do with the Dwarves and spent time dwelling in the foothills of the mountains. They moved west early and roamed over Eriador as far as Weathertop (Amon Sul) while others were still in the Wilderland. They were the most normal and representative variety of Hobbit and clearly are the focus for the development of the hobbits in “The Rings of Power.”

The realisation of the Harfoots is an interesting one – a semi-nomadic people with their own lore and practices, able to hide easily demonstrating a similar tendency displayed by hobbits of the Shire. Quite a bit of thought has gone into the portrayal of the Harfoots and their practices. I get the sense that somewhere in the story they will attempt the crossing of the Mountains and come to Eriador.

The discovery of the Stranger by Nori (properly named Elanor Kellamark Brandyfoot)  sets up more mystery. It is difficult to determine whether the Stranger is good or evil. The suggestion that he might be evil arises from Galadriel’s remark in the first episode in Sauron’s former fortress that Sauron’s aura of evil is so powerful that the flames from her soldiers’ torches can’t warm them. The fiery crash from the Stranger’s meteor is strangely cool, and it doesn’t burn Nori when she crawls into the wreckage.

I would like to think that the Stranger could be Gandalf or one of the Istari but I always imagined that the arrival of a Maia on Middle-earth would be surrounded with more majesty than a crashed meteor containing a being with communication difficulties.

Visually, “The Rings of Power” does not disappoint. Clearly the scenery and overall design owes much to Peter Jackson’s imagining, aided by well-known Tolkien artists Alan Lee and John Howe. Only John Howe was hired as a concept artist for “Rings of Power”.

That said, the themes of the Elven dwellings, the landscaping and lighting is particularly good. The scene when Finrod Felagund leaves his sister Galadriel and walks atop a hill to see a beautiful city with soaring towers  – possibly Gondolin although it may be the Tower of Tirion in Valinor – is our first view of the impressive architecture of the Elves. The light and airy style is carried through to the dwellings in Lindon, seat of the Elves in Middle-earth and home of Gil-Galad. There is a resemblance to Rivendell (Imladris) from Jackson’s imagining as the camera pans across the crags and valleys upon which Lindon is located.

The imagining of the Dwarf realm of Khazad-dum is impressive and soaring in its scope. It must be remembered that Moria (as it was called in “The Lord of the Rings”) had been lost notwithstanding the efforts of Balin son of Fundin to recapture the glories of the Dwarvish realm. But he awoke the Balrog and Moria was lost to evil and to orcs and trolls. In “Rings of Power” we get to see Khazad-dum in all is glory. The imagining is impressive.

As is the imagining of Numenor – quite a different realm from that of Lindon or Khazad-dum or the brutish dwellings of the Southlanders. Here we have a civilization at the height of its powers. Its ships dominate the seas with their unique wing-shaped sails. Its buildings rise from the bay with great statues that are reminiscent of the Argonath on the river Anduin through which the Fellowship pass in “The Lord of the Rings”. The royal palace echoes the design of Mins Tirith with a vast out-reaching prow over which flows a mighty waterfall.

The realisation of Numenor was more impressive than I could have thought. The city, however, must be Romenna. It cannot be Armenelos which was inland and the city depicted in “Rings of Power” has a harbour and is on the ocean. Missing from Numenor is the tower from which can be seen the Undying Lands – visible but forever out of reach because of the Ban of the Valar. Mortals could not come to the Undying Lands.

I thought that the show-runners took on a risky endeavour in the first episode in depicting the passage of the Elves to the Undying Lands. There is a hint of what this could be like in the final chapter of “The Lord of the Rings” when Frodo sailed from the Grey Havens

“And the ship went out onto the High Sea and passed into the West, until at last on a night of rain Frodo smelled a sweet fragrance on the air and heard the sound of singing that came over the water. And then it seemed to him that as in his dream in the house of Bombadil, the grey rain-curtain turned all to silver glass and was rolled back, and he beheld white shores and beyond them a far green country under a swift sunrise.”

In episode one Galadriel contemplates a painting of a ship sailing to Valinor and discusses it with Elrond.

Elrond: I hear it said that when you cross over you hear a song – one whose memory we all carry; and you are immersed in a light more intoxicating  than any sensation is all of Middle-earth

Because the days of war are over, according to Gil-Galad, the heroes, including Galadriel, would be escorted to the Grey Havens and be granted passage across the sea to dwell for all eternity in the Blessed Realm, the Far West, the Undying Lands of Valinor. At last they were going home.

This is not what Galadriel wants, fearing that the spirit of Sauron is still abroad and as the ship approaches the Undying Lands she jumps off into the sea from when she is rescued by chance and by Halbrand.

But it is the scene some 49 minutes into the first episode that depicts the passage of the Elves to Valinor that the creativity of the film makers exceeds all expectations. The ship is clearly an Elvish one with the prow of a swan, hearkening back to the swan ships of Alqualonde.  the design is similar to those seen in “The Lord of the Rings” thus owing a debt to Jackson’s vision.

The passage continues some 54 minutes in as the ship approaches the Undying Lands. The Elves divest themselves of their warlike trappings as the ship sails to the dazzling light that is Valinor. Delicate seabirds, known to the Elves, fly by and a song is heard as the birds lead the ship to the Undying Lands. The birds are remarkably similar to those depicted by Alan Lee in his painting of Alqualonde. The sky opens to a dazzling light and land can be faintly seen. A misty rain envelops the ship as one by one the Elves are absorbed by the light of the Bliss of Valinor.

In some respects this rendering of the passage to Valinor was the equivalent of what I thought was Jackson’s imagining of the arrival of the Rohirrim at Pelennor Fields and in my view the most outstanding scene of the whole “Lord of the Rings” movie trilogy. The amazing thing is that Jackson has Theoden do something that does not appear in the book but works perfectly. He rides down the line of the Rohirrim and touches the tips of their spears with his sword.

Then he uses Tolkien’s words which could not be bettered in any circumstances

Arise, arise, Riders of Theoden!

Fell deeds awake: fire and slaughter!

Spears shall be shaken, shields shall be splintered

A sword-day, a red day, ere the sun rises!

Ride now, ride now! Ride to Gondor!

 Jackson then puts the words of Eomer into Theoden’s mouth – words spoken after the fall of the King but in the context of what is happening they work perfectly

Death! Ride, ride to ruin and the world’s ending

There are so many possibilities in Tolkien’s writing for wonderful imaginings. The passage to Valinor and the Ride of the Rohirrim are two such.

Yet despite these wonderful imaginings there are a few disappointments. These are in the field of casting. Robert Aramayo makes it as Elrond and displays some of the power that Elves have when he hears – from a distance, a great distance – a conversation about the location of the vein of mithril. He has a certain airy quality to his portrayal of Elrond that works. And we must remember that he was one of the most powerful Elves in Middle-earth

“I was the herald of Gil-Galad and marched with his host. I was at the Battle of Dagorlad before the Black Gate of Mordor, where we had the mastery: for the spear of Gil-Galad and the Sword of Elendil, Aiglos and Nartsil, none could withstand. I beheld the last combat on the slopes of Orodruin, where Gil-Galad died, and Elendil fell, and Narsil broke beneath him,: but Sauron was overthrown, and Isildur cut the ring from his hand with the hilt-shard of his father’s sword and took it for his own.”

Sadly, however, Gil-galad played by Benjamin Walker doesn’t make it. I don’t know whether it is the golden wreath that he wears but the majesty of a High Elf is simply lacking. In “The Lord of the Rings” we first hear of Gil-Galad when Sam recites part of the Fall of Gil-Galad on the path to Amon Sul.

Gil-galad was an Elven-king

Of him the harpers sadly sing

The last whose realm was fair and free

Between the Mountains and the Sea

His sword was long, his lance was keen,

His shining helm afar was seen;

The countless stars of heaven’s field

Were mirrored in his silver shield

But long ago he rode away

And where he dwelleth none can say;

For into darkness fell his star

In Mordor where the shadows are.

Sadly the portrayal of Gil-Galad doesn’t measure up. It may be that there will be improvements as the show progresses and develops. But similarly Celebrimbor, played by Charles Edwards, doesn’t make it for me. Edwards looks like a scribe or a bureaucrat rather than an Elven smith, creator of the Rings, he who wrote the signs on the Door of Durin that led to Khazad-dum. Celebrimbor was the son of Feanor’s brother Curufin. It was Feanor who crafted the Silmarils. Celebrimbor’s lineage as a master craftsman is great. The Edwards portrayal reminds me of a Machiavellian elf who wouldn’t dirty his hands at a forge.

Isildur played by Maxim Baldry is impetuous and undisciplined. I hope that he develops into the tall, proud Numenorean and elf-friend but in these early episodes he has a distance to go before he is the Isildur who took the Ring from Sauron.

Elendil, (Lloyd Owen) on the other hand is as I imagined. He has a majesty and mana that shines through and is not afraid to acknowledge to a Numenorean ruler that his name means elf-friend at a time when elves were not seen as friends of Numenor, although they once were.

My tentative conclusions so far – apart from the casting misgivings and the compression of the timeline – are that the show is worth watching and is a good rendering of Tolkien’s creation. It does not have the doom laden sense that accompanied “Game of Thrones” or “House of the Dragon”. Martin’s world is a brutal one and Tolkien’s can be as well although there is always room for redemption.

I shall continue with Season One for I am interested in the way in which Tolkien’s Secondary World is realized. Jackson did an excellent job. So far, from a visual perspective at least, this isn’t too bad.