The Marketplace of Ideas

I read Lizzie Marvelly’s “Words can hurt like sticks and stones” in the Herald for Saturday 8 April with interest. The theme of her argument is that with rights – such as the freedom of speech – come responsibilities. There is no difficulty with that. However, some of the arguments advanced must give cause for pause. What seems to be the substance of the argument is that there is freedom of speech – up to a point.

A recent statement of concern by Professor Paul Moon and a number of other prominent New Zealanders seems to have prompted the article. It is perhaps a little bit disappointing that Ms Marvelly devalues her argument adopting a note of disdain when she refers to this group describing them as a “fusty group of signatories of Moon’s missive – many of whom are long past their student days and unlikely to have faced either online abuse or the dangerous rhetoric of groups like the neo-masculinists or the alt-right.”

Further she seems to be critical the provisions of s. 14 of the New Zealand Bill of Rights Act 1990, suggesting that the freedom of expression – to seek, receive AND impart information – could not have contemplated the democratisation of expression enabled by online platforms.

Of course the history of freedom of expression goes much further back than  1990. And it has been involved with technology. The invention and use of the printing press was as revolutionary for the imparting of ideas as social media is today. In enabled the spread of the radical (and very controversial and unpopular) ideas of Martin Luther that led to the Reformation. And it attracted official interest from the beginning. The expression of dissent, be it religious or political, was severely suppressed in the days of the Tudors, the early and later Stuarts and the Commonwealth in England. The savage treatment visited upon those who expressed unpopular views is well recorded.

The move to a recognition of the freedom of speech came from the experiences of repressive tyrannies both in England and in the American colonies. The First Amendment to the United States Constitution arose as a response to the repressive conduct of the colonial power and to guarantee robust and open debate. Thomas Jefferson referred to the marketplace of ideas which freedom of speech enabled and within which ideas of doubtful or dubious value would fail.

I agree with Ms Marvelly that there are risks associated with the expression of an opinion. The contrary view may be expressed. That is what happens in the market place of ideas. But the marketplace should not be shut down just because some of the ideas may be controversial.  And that is the problem. In the same way that a person has the right to express a point of view, so a potential audience has a right not to listen. They need not even examine what is on offer in the marketplace. But the important thing is that the idea, however controversial – even repugnant – should be expressed and, in accordance with the Bill of Rights Act there is a right to receive those ideas. It is up to the audience to choose whether or not to accept or endorse them.

The real test of one’s commitment to freedom of expression is in being willing to allow the expression of those views with which we do not agree. As Justice Oliver Wendell Holmes said in United States v Schwimmer 279 US 644 (1929) “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” The last phrase is the title of an excellent book which Ms Marvelly may profit from reading.

But the New Zealand Herald became the market place of ideas on this particular topic. Not only did it publish Ms Marvelly’s qualified approach to freedom of expression. It also published (Herald on Sunday 9 April 2017) a more expansive view of the freedom of expression by Heather du Plessis-Allan entitled “Being Offensive is not a Crime” concerned with abrogation of free expression (she calls them shout-downs) and the theme of that article is that there is no right NOT to be offended. Indeed Salman Rushdie, whom Ms du Plessis-Allan quotes at the end of her article said “what is freedom of expression? Without the freedom to offend it ceases to exist.” And then of course there is the article that started it all – “Free Speech Under Threat in NZ Universities” – in the Herald for 4 April 2014.

The abrogation of the freedom of expression, even partially, even if voluntarily assumed, is a burden on liberty. So I guess when I shop in the marketplace of ideas I prefer the more robust approach of Professor Moon and Ms du Plessis-Allan.

But by the same token it is fortunate and we should be grateful that we live in a society where the ideas expressed by Ms Marvelly were and are available for consideration.

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“Harm” in the Harmful Digital Communications Act

The recent decision of Justice Matthew Downs about the Harmful Digital Communications Act seems to be misunderstood.  Ben Hill in the NZ Herald went so far as to state that the decision said that  posting intimate images on Facebook met the harm threshold detailed in the act. Far from it.

Some clarification might be helpful. The case involved a prosecution under one of the sections of the Harmful Digital Communications Act. Because of that a couple of basic criminal law propositions applied. First, the burden of proof was on the prosecution. Secondly to obtain a conviction the prosecution had to prove each of the three elements of the charge beyond a reasonable doubt.

A criminal trial can be divided up into two main phases – the prosecution phase and the defence phase. If the prosecution fails to provide any or sufficient evidence of any one of the elements of a charge, the charge may be dismissed.

In the case under appeal that is the point the case reached. Was there evidence of harm – serious emotional distress – suffered by the complainant? The District Court Judge looked at what was available and concluded that although there was evidence of emotional distress, he was not satisfied that it had reached the “serious” point. Because he concluded that there was insufficient evidence to support one of the elements the case was dismissed.

If that evidence had been available – that is evidence where a reasonable fact-finder, properly applying the law, could convict – then the Judge would have called upon the defendant to ascertain if he had evidence to add to the mix. It does not mean that the defendant was presumed guilty or that he had a burden to prove his innocence. But his evidence could help the Judge in the next step in the reasoning process which would be to assess whether or not the evidence satisfied him beyond a reasonable doubt that the complainant had suffered serious emotional distress. That is a different line of enquiry to that of ascertaining whether the evidence was present in the first place.

When the case went before Justice Downs on appeal by the Police there were two lines of argument. One was that the test applied by the District Court Judge was too high. That argument was rejected by Justice Downs. The second argument was that the Judge had not evaluated the available evidence properly when he concluded that there was no evidence of serious emotional distress.

This was the crux of the case. The District Court Judge had taken reactions by the defendant to the posting of her intimate images on a Facebook page – loss of sleep, tears, possible time off work, embarrassment – and concluded that individually these did not amount to serious emotional distress. Justice Downs said that was not the proper approach. The Judge should have looked at the total effect of all of these elements and taken them collectively. In addition he should have had regard to the context – a relationship breakdown, an apparently controlling and jealous husband who had threatened to put the pictures online. Looking at these factors collectively Justice Downs concluded that they did amount to sufficient evidence of serious emotional distress and therefore the prosecution had established a case that the defendant had to answer.

So the case is about how to evaluate whether or not a post has caused harm. In that sense it could be said that it is “lawyers law”. But does this mean that the defendant is automatically guilty. It does not. The case has been sent back to the District Court and the case for the defendant will be presented and argued. And then the Judge will have to consider whether the evidence takes him past the “beyond reasonable doubt” threshold to enter a conviction.

Prosecutions under the Harmful Digital Communications Act in the main have resulted in pleas of guilty. But each case must be looked at in the context of its own facts and circumstances. It may be morally wrong to post intimate images on a Facebook page. But there are a number of other elements that must be proven before that amounts to a criminal offence. One of those elements is that of actual harm – serious emotional distress as defined in the Act. If proof of that is lacking there is no offence. If the target of the communication dismisses the posting as of no consequence, no harm has been done.

And that is what the Act is about. It is not about the nature of the content. It is about whether or not the posting has caused harm as defined by the Act.

Justice Downs’ decision helps us in how the evaluation of harm should be approached.