Introduction
Censorship is the suppression of speech, public communication or other information. Censorship may be imposed by a Government or by private individuals. Censorship imposed by a Government is contentious in that it may be used for political purposes or to restrict the nature of information that the public may receive.
Censorship, by its very nature, creates a tension within a free and democratic society and challenges freedom of expression by imposing minimum standards of socially acceptable speech on the contemporary community. Under s 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights) everyone has the right to freedom of expression; a right as “wide as human thought and imagination”.[1] Censorship acts as an abrogation of that right.
The censorship regime in New Zealand today is governed by the Films, Videos, and Publications Classification Act 1993 which set up a Classification Office to review and classify material submitted to it, and a Board of Review to which an appeal could be made. Prior to its enactment there were three separate regimes with their own criteria: a Chief Censor of Films under the Films Act 1983, a Video Recordings Tribunal under the Video Recordings Act 1987 and the Indecent Publications Tribunal under the Indecent Publications Act 1963[2].
A Ministerial Inquiry in 1989 recommended the development of one comprehensive classification system for the material already covered by existing censorship laws and an extension of the scope of the law to include a wider range of media.[3] When the Bill was discussed in Parliament the Minister of Social Welfare emphasised that the focus of the Bill was the likelihood of harm. She considered it represented a major shift in its philosophy on censorship away from moral paternalism and moral indignation alone to the likely impact of material on the community and particularly young persons.[4] The Act was to provide better public access to the classification system. It also strengthened enforcement measures.
In this post I want to discuss two issues surrounding censorship that were highlighted by an article that appeared in the Sunday Star-Times for Sunday 10 January 2021. One of the issues raised by the article involves an example of the nature of censorship of a book – Into the River by Ted Dawes – which of itself created some controversy in 2014 – 2015. The history of the processes to which the book was subject merited a more detailed narrative than appeared in the newspaper article.
The other issue involves another form of possibly more contentious censorship – by private individuals who may restrict access to information within the commercial environment. The strictures imposed by law apply to the first issue and require a rigorous approach in considering whether information is to be censored. They do not apply to the second issue which involves decisions arising from personal choice which may (and often do) have commercial consequences. But the issue is whether those who place information in the public domain have any moral or ethical obligation to adhere the freedom of expression standards.[5]
Into the River
Books, unlike films or DVDs, do not need to be classified before being released, but can be submitted to the classification office by Internal Affairs, Customs, Police or a member of the public. Since the Act came into force over 90 books have been banned. The classification and reclassification of Into the River received unprecedented media attention both in New Zealand[6] and world wide.[7] Ultimately the book was classified four times.
Into the River by Ted Dawes,was a young adults book that won the Margaret Mahy children’s book of the year award in 2013. It was submitted to the Classification Office by the Department of Internal Affairs after complaints about its sexual content by members of the public.
The book is a coming of age story that traverses the fortunes of Te Arepa Santos, a young Māori boy from a fictional village on the East Coast of the North Island, who wins a scholarship to a boys’ boarding school in Auckland. It describes his attempts to adapt to a very different way of life. He experiences the bullying that goes with being the new boy and sees what happens when bullying goes too far. He makes friends, finds enemies, and discovers that his Māori identity is a disadvantage. There are two explicit sex scenes in the book and some reference to homosexuality, as well as words that would be considered as offensive. Along the way drug use and other criminal activity are featured. The book ends with his expulsion.[8]
In September 2013 the book was classified as unrestricted “M” by the Classification Office with a descriptive note “[c]ontains sex scenes, offensive language and drug use”. The Classification Office saw a “depth and wisdom” that took the story beyond the gratuitous. It was intended for a mature audience and there were “many other novels widely available without restriction in New Zealand with similar sexual descriptions of an equivalent nature. [9]
The decision was appealed by Family First New Zealand and in December 2013 it was classified R14 by a majority of the Board of Review. There was a strong dissenting decision by the President who would have classified it as R18.[10] The majority considered that although this book did describe, depict or otherwise deal with matters such as sex, crime, cruelty and violence it did not do so such that the availability of the publication was likely to be injurious to the public good. Indeed, it considered that the matters were dealt with in a way that was likely to educate and inform young adults about the potentially negative consequences that can follow from involvement in casual sex, underage drinking, drug taking, crime, violence and bullying. Hence, the book served a useful social purpose in raising these issues which were important to young people, and creating an environment which allowed them to think more carefully about the choices they might make and the repercussions of these.[11] Nonetheless there were scenes in the book that were powerful and disturbing and could run a real risk of shocking and distressing young people hence an age restriction was appropriate.[12]
The R14 classification had not been used by the Board before and indeed it was the first time in 22 years that a book in New Zealand had been subject to a restriction. It was also one that was difficult to properly enforce, and it was almost inevitable that the restriction would cause problems particularly for teachers and libraries. A decision of the Review Board can be reconsidered if special circumstances exist and with the consent of the Chief Censor.[13] Auckland Libraries made an application for reconsideration. The Chief Censor granted leave.
On 14 August 2015 the book was reclassified by the Classification Office this time as Unrestricted. In doing so the Office was critical of the failure of the Board, both the majority and the minority, for failing to refer to freedom of expression in their decisions. In the opinion of the Classification Office an age restriction did not sit comfortably with the right to freedom of expression, indeed was inconsistent with it and was not reasonable or demonstrably justified.[14]
Family First sought and received the leave of the Secretary that the Board of Review should again review the classification. Family First also sought and received an interim restriction order making it illegal to sell or display the book; this was the first time one had been imposed on a book and was greeted with an outcry.[15] The order was granted by the President on the basis that the classification was a matter of wide public concern, and that the decision of the Classification Office had radically altered that of the Board of Review. He considered that the correct classification was one that would operate as a semi-precedent and exert a significant influence over the classification of publications that portrayed teenage sex and drug-taking.
Once again the Film and Literature Board of Review considered the matter and released a decision dated 14 October 2015. This time the book was classified Unrestricted by a majority of the Board of Review, given the greater information now available to it, with the President again delivering a dissenting opinion.[16]
It can be seen from this discussion that a careful process has been set in place with checks and balances that ensure that there is no unjustified or unreasonable interference with the freedom of expression. What is unusual about the Into the River story is that unilaterally the President banned the book – effective for a period of six weeks – which would have meant that the possession or distribution of the book might attract criminal consequences. Family First accused the board of succumbing to book industry pressure despite what he alleged was the book’s “highly offensive and gratuitous language, adult themes and graphic sexual content.”[17] However, despite those criticisms, the reasoning of the Board of Review is both available and clear and is an example of the operational process of the New Zealand censorship regime under the Films, Videos and Publications Classification Act 1993.
Private Censorship
The second issue raised by the article is an interesting one. It records that a Wellington bookseller has decided not to sell books by J K Rowling. The reasoning has nothing to do with the books themselves but because of views expressed by Rowling on another issue. It is not the function of this paper to consider the validity or otherwise of either position other than to observe that Rowling’s blog post that aroused such ire seems to be a well written, considered and reasoned exposition of her views.
However, concerns have been expressed that the actions of the bookseller somehow have implications for freedom of expression. These concerns cannot be sustained. The right of freedom of expression – to impart and receive information – involves the interaction between the State and the private individual. In essence the right of freedom of expression should have no interference from the State. That, of course, cannot be an absolute. The New Zealand Bill of Rights Act makes that clear. But if the State is going to interfere with the freedom of expression it can only do so in a manner consistent with the Bill of Rights Act. And that is what the censorship regime described in the first part of this paper, is all about.
The guarantee of freedom of expression does not extend to private organisations. Assume that I run a bookstore which I own and which provides me with my livelihood. I decide which books I am going to sell and which I am not going to stock. If I want to sell books of a particular genre – say ancient history or science fiction but not fantasy, that is my choice. I am targeting a particular market and providing an opportunity for those who wish to purchase the books that I sell to come in through my doors, part with their cash and take out the book that I want.
I may make the choices about the books that I am going to stock for a number of reasons. I am probably going to sell books that are going to sell well. I am not going to stock books that are objectionable and banned pursuant to the Films Videos and Publications Classification Act. That would involve me in prosecution, the imposition of a substantial fine and possible imprisonment. Apart from the deterrent aspects of the law I would rather be seen as a law abiding trader.
But immediately it can be seen that there are limitations on the books that I may put on my shelves.
So what happens if for other reasons, apart from commercial ones, I choose not to stock certain works. This is the situation facing the Wellington bookseller. She chooses not to stock books written by a person with whose views she disagrees. She is quite entitled to do that. It is her business. She is not obliged to stock works by Rowling or any other author whose works she chooses not to stock.
The Stuff article records her as follows:
“As a small business one of the first things you have to do, I believe, is to figure out what your values are: how you’re going to treat your employees and your customers,” she said.
“I think the line for us is very clear. The line is where people are using their public platforms to promulgate misinformation, bigotry or hate speech.”
She is responding to the exercise of the freedom of expression by Rowling. By the way, I would not characterise the blog post as hate speech – and I have written on that topic elsewhere – and although her actions may have commercial consequences at least she has the courage to explain her reasons for making Rowling’s works unavailable.
However, Paula Morris has expressed some concern in the article. The article states:
“Excluding authors from bookshops is the small-scale version of what’s happening online, where cancel-culture has become a form of censorship”
I think we have to be careful here. In the broadest sense what the bookshop is doing is a form of what could loosely be described as the “cancel culture”. But there are other aspects of the book seller’s actions that remove it from steps that are taken to silence points of view.
At the risk of sounding like John Galt in Ayn Rand’s Atlas Shrugged the bookshop is a private enterprise that belongs to an individual who can run it as she sees fit, as long as she soes so with in the law. It may be that many may disagree with what she has done. Others may applaud her actions. But she is entitled to run her business as she sees fit.
Cancel Culture
Cancel culture refers to the popular practice of withdrawing support for (cancelling) public figures and companies after they have done or said something considered objectionable or offensive. Cancel culture is generally discussed as being performed on social media in the form of group shaming.
As a manifestation of the freedom of expression there can be little objectionable about the cancel culture as defined above. It is quite legitimate in Thomas Jefferson’s market place of ideas to challenge the ideas expressed by another. The problem with cancel culture is that it is more a form of an in personam rather than a challenge to the validity of the views or ideas themselves. Care must be taken not to stray into areas where there may be legal remedies available by way of an action for defamation or a for a remedy under the Harmful Digital Communications Act.
Of course the usual social media platforms like Facebook, Twitter, Instagram and the like are not the ideal fora for detailed, nuanced or rational debate. Hyperbole and faux outrage prevail and rarely is the substance of an idea carefully, rationally and critically debated. But that said, as I have suggested, it is perfectly legitimate for views to be expressed about the validity of ideas expressed by others.
The problem arises when the cancel culture extends to platform denial. Using my reasoning in support of the bookseller, if I own a hall or a venue I can decide what sort of activities are going to take place there. It is, after all, my property. If I decide I am not going to provide a platform for a supporter of a position with which I disagree, I am entitled to refuse to provide platform for the speaker. There are no freedom of expression issues here because once again the State is not involved in the restriction of expression.
The situation becomes a little more complex if I want to express a view using a platform owned by the City Council. The City Council may refuse to make a Council Hall available. Representatives of the Council may give a reason – that my political views do not align with theirs. It could be said that because the Hall is Council property then property rights prevail – rather like the bookseller example. The difference is that the Council is a public body and the Bill of Rights Act (and the provisions relating to Freedom of Expression) apply because the Act extends to “any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.”
So if the Council were to deny me a platform it would have to offer some justification for doing so and that justification would have to be one that amounts to a reasonable limitation of my right of freedom of expression.
The waters become a little more murky when we consider the position of a University. There have been cases of platform denial by Universities both overseas and in New Zealand. Apart from the traditional role of the University as a forum for debate – often vigorous and heated – it could be argued that the University fulfils a public function especially in light of the fact that substantial sums of taxpayer money are made available to Universities. In such a situation it could be argued that the guarantee of freedom of expression extends to Universities and, like the example of the Council, must provide a justification for the reasonable limitation of the rights of freedom of expression sought to be exercised on campus.
Conclusion
The issues in this paper are highly complex and nuanced. The ramifications of the “cancel culture” and “platform denial” will continue to reverberate for some time and it could be argued that the jury is not yet in on that aspect of the freedom of expression. And of course the role of social media platforms introduces another element. Are they private organisations and as such are like the bookseller? Or are they publishers? And what of the moderating roles that are undertaken. Does that cast upon social media platforms more nuanced and granular responsibilities. I think the days may be over when social media platforms can validly argue that they are no more nor less than common carriers.
But what I have tried to do is to sketch some broad aspects of the freedom of expression and the importance of differentiating freedom of expression as a right in the public as opposed to the private sphere.
The actions of the bookseller may well mean that strict freedom of expression adherents will apply their own “cancel culture” and seek out the works of J.K. Rowling elsewhere including via Amazon or the Book Depository. But that would merely be an exercise of their freedom of choice to refrain from dealing with a person or organization with whose views they strongly disagree.
And in the final analysis that is what democracy and freedom are all about.
[1] Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at [15].
[2] For an overview of censorship in New Zealand see https://en.wikipedia.org/wiki/Censorship_in_New_Zealand
[3] Joanne Morris, Hilary Haines and Jack Shallcrass Pornography: Report of the Ministerial Committee of Inquiry into Pornography (Ministry of Justice, January 1989).
[4] (22 June 1993) 536 NZPD 13989 – Hon Jenny Shipley.
[5] It should be noted that the provisions of s.14 of the New Zealand Bill of Rights Act apply only to state actors.
[6] “Searched for banned book ‘Into the River’ increasing, say Trade Me” The New Zealand Herald (online ed, Auckland, 10 September 2015).
[7] Eleanor Ainge Roy “New Zealand bans award-winning teenage novel after outcry from Christian group” The Guardian (online ed, London, 7 September 2015); “New Zealand: Award-winning Into the River novel banned” (7 September 2015) BBC News <www.bbc.com>.
[8] See the detailed description of the plot in Re Into the River No 1 Office of Film and Literature Classification 1300727.000, 11 September 2013.
[9] Re Into the River No 1 Office of Film and Literature Classification 1300727, 11 September 2013.
[10] Re Into the River No 1 Film and Literature Board of Review, 17 December 2013.
[11] Re Into the River No 1 Film and Literature Board of Review, 17 23 December 2013 at [31].
[12] Re Into the River No 1 Film and Literature Board of Review, 23 December 2013 at [47].
[13] Films, Videos, and Publications Classification Act 1993, s 42.
[14] Re Into the River No 2 Office of Film and Literature Classification 1500261.000, 14 August 2015.
[15] See, for example, “Award-winning teen book Into the River banned in New Zealand” Newshub (online ed, New Zealand, 7 September 2015) and Eleanor Ainge Roy “New Zealand bans award-winning teenage novel after outcry from Christian group” The Guardian (online ed, London, 7 September 2015). It also led to a recommendation for a change in the legislation permitting the President to limit an interim restriction order on a publication by age, class of persons, or particular purpose: Films, Videos, and Publications Classification (Interim Restriction Order Classification) Amendment Bill 2016 (205-1).
[16] Re Into the River No 2 Film and Literature Board of Review, 14 October 2015.
[17] https://www.theguardian.com/books/2015/oct/14/ban-lifted-on-new-zealand-young-adult-novel-into-the-river
The IT Countrey Justice 