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.

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Testing Expression

Introduction

There seems to be an ambivalence in New Zealand about freedom of expression. Although the right to communicate and receive information is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990, the exercise of that right in certain circumstances is questioned. Indeed there seems to be a shift towards banning or censoring some manifestations of expression. In this piece I outline the approach that should be adopted to controversial speech, and the rare circumstances in which censorship – an extreme remedy – should be contemplated. The approach that I have developed owes much to the material in Professor Nadine Strossen’s excellent book “Hate: Why We Should Resist It With Free Speech Not Censorship”

The Approach

There are two major principles that must guide an assessment of whether or not an expression should be stifled, censored or punished. These principles are known as the emergency and viewpoint neutrality principle. They have developed in the United States but can operate as useful guidelines for an approach to the application of the freedom of expression guarantees in the New Zealand Bill of Rights Act 1990.

As freedom of expression jurisprudence developed in the United States of America, the Supreme Court held that a government could punish speech based on a feared “bad” or “harmful” tendency. This was based on a vague, general fear that the speech might indirectly contribute to some possible harm at some indefinite future time. This could be called the “harmful tendency” test. This test allowed the State to punish speech that contained ideas that it opposed or did not favour. That included speech that criticized government policies or officials.

The ”harmful tendency” approach was rejected by the US Supreme Court in the early twentieth century. It was replaced by a stricter test 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. One of those other ways is by what has been described as “counterspeech”.

Counterspeech counters or responds to speech with a message that the speaker rejects. Counterspeech may address various audiences including the speaker and those who share the speaker’s views, the people whom the speech disparages and the general public. It may include denunciations and refutations of the message. It may provide support for persons who the speech disparages. It may include information that seeks to alter the views of the speaker and those who may be sympathetic to those views. If speech does not satisfy the emergency test, the proper response is counterspeech.

Speech should not be the subject of State interference solely because the message is unpleasant, discomforting, disfavoured or feared to be dangerous by the State. This is known as “content or viewpoint neutrality”. This approach prevents the State from regulating speech simply because the speech’s message, idea or viewpoint is unpleasant, discomforting, offensive, disfavoured or feared to be dangerous by government officials or community members. That approach – what could be called “viewpoint discriminatory” regulation – would attack individual liberty but also democratic principles. Officials could use it to suppress unpopular idea or information or manipulate public debate.

Censoring speech because it is disfavoured, no matter how deeply, violates the viewpoint neutrality principle. That principle is also violated when the State suppresses speech about public issues. This can include “hate speech” simply because its views might have a disturbing impact upon the emotions or psyches of some audience members. The State may not punish “hate speech” or speech with other messages simply because of its offensive, discomforting, disfavoured, disturbing or feared message.

Counterspeech is available to address such messages. Only when the speech crosses the threshold into the emergency test – that is when it directly, demonstrably and imminently causes certain specific, objectively ascertainable serious harms that cannot be averted by other than censorship – may the State intervene.

I referred to “hate speech” in the preceding paragraph. I have put it in quotation marks. This is because the term lacks specificity of meaning. Its generally understood core meaning is speech that expresses hateful or discriminatory views about certain groups that historically have been subject to discrimination such as people of colour, Jews, Muslims, women and LGBTQ persons, or about certain characteristics that have been the basis for discrimination such as race, gender, religion and sexual orientation. It is not speech that the listener hates to hear. Only when the speech crosses the threshold and satisfies the emergency test should the State intervene. It is for that reason that I prefer to refer to such speech as dangerous speech because it poses a clear and present danger of serious physical harm.

In New Zealand we have a number of State interventions in the area of speech regulation. These can be found in the Films, Videos and Publications Classification Act 1993, the Harmful Digital Communications Act 2015 and the various sections of the Crimes Act 1961 and the Summary Offences Act 1981 dealing with threatening language or behaviour.

Some of these pieces of legislation provide examples of the emergency test in action. For the provisions of the Harmful Digital Communications Act to be engaged serious emotional distress (harm) must be suffered. Criminal penalties are attracted if the person posting the digital material has the requisite intention to post the material with the associated intention of causing serious emotional distress. Thus actual harm is an element that engages legislative intervention. Mere offence or disfavour is not sufficient.

The declaring of material to be objectionable under the Films, Videos and Publications Classification Act 1993 leans towards a harmful tendency test. Material may be objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good. This definition suggests that the particular publication may be injurious to the public good – not as an imminent threat – but at some indefinite future time.

The Classification Office is careful to ensure that its determinations fall within the ambit of the categories expressed in the definition of objectionable. Recently, however, there have been a couple of examples where political expression – albeit abhorrent – has been classified as objectionable. However, unless the level of abhorrence comes within the statute it can be addressed by counterspeech.

One of the difficulties facing freedom of expression in New Zealand lies in the climate of fear that has generated over the period of the Covid pandemic. There has been fear about the consequences of the disease, fear if the various directives of the government are not complied with, and fear arising from the expression of contrary views.

Anti-vax sentiments have morphed into anti-government protests and those who express contrarian views have been accused of spreading misinformation and disinformation. All of these views are in the main disfavoured, disturbing or adding to the climate of fear. So much so that the former Chief Censor lent the weight of his office to a publication about misinformation and disinformation entitled the “The Edge of the Infodemic – Challenging Misinformation in Aotearoa”.

One wonders whether the Chief Censor of the time wished to see misinformation come within his ambit and be subject to classification or even being classed as objectionable. It is difficult to see how misinformation or disinformation could fall within the emergency test. Although it may be disfavoured, wrong-headed or disturbing it falls within the scope of viewpoint neutrality, best met with counterspeech.

The ”Harmful Tendency” In Action

A recent demonstration of the overreaction of the public to forms of expression, the rise of the harmful tendency approach and the belief that the State should intervene is chilling and concerning. Rather than addressing the problem with counterspeech or some such similar demonstration, citizens required the Police to investigate incidents involving the flying of flags.

In Wanaka the investigation involved a red flag with a white circle. Inside the circle was a three pointed icon. What could this have been? Some far-right white supremacist coven, perhaps. It was reported as a racist flag. But no. The flag in fact was a Klingon battle flag from the TV series Star Trek. The Police investigated nevertheless.

The second flag that was investigated was a little more confrontational. A flag was flying from a dwelling bearing the insignia of the gang Black Power along with the iconic clenched fist salute. It was what was written below the salute that caused concern. It was the “N” word but instead of ending “er” it just ended with “a”.

So concerned were the Police that they referred the flag to the Censor in an effort to have it declare objectionable. Quite properly the application was refused.

Although these cases may seem insignificant or trivial in themselves there is a deeper level of concern. Are we becoming too precious about taking offence? Are we leaning towards a “harmful tendency” position? Is the answer to something with which we disagree to complain to the authorities or try to shut it down? That is not what freedom of expression in a democratic society is all about.

That these sentiments seem to be surfacing should be no surprise. The Government holds itself out as the sole source of truth and any disagreement is cast as misinformation or disinformation. Some elements of the media demonise contrary opinions and there seems to be a developing trend to silence or cancel opposing points of view simply because they are perceived to be disagreeable or offensive, rather than engaging with the issue.

The reason that is advanced for failing to engage with the issue is that to do so merely gives oxygen to a contrary point of view, but only by discussion and challenge can the holders of contrary views understand and perhaps even accept they are wrong.

We need to be more robust in the way that we deal with views with which we disagree. We must remember that those expressing such views have as much right to express their sentiments as we have to express ours. And we must remember that the only time speech should be censored is if there is a clear, immediate and present danger that it may cause harm. If the ideas that are the subject of speech are controversial, offensive or disfavoured the remedy lies in debate or persuasion and not the intervention of the State.