JUL 11 2018

Free Speech and Proportionality

All Posts

I should say at the outset that I agree with the decision of Mayor Phil Goff not to permit council venues to be used for the Canadian far right speakers Lauren Southern and Stefan Molyneux. Of course, his decision has no effect on whether they can enter the country and speak to an audience.. There is nothing to stop them renting private premises and delivering their message. All he has done is exclude them from publicly owned facilities.

The issue of whether they should be able to speak is not therefore actually affected by the decision. There are plenty of places where they could present their views, and there is nothing which the Auckland City Council, or for that matter any local authority can do if they choose to speak at a private venue. So there is considerable rhetoric about the right to free speech, although Phil Goff has only refused permission for public facilities. There is a balancing of responsibilities, but no actual suppression of any freedom to speak, except in the limited sense that they cannot speak at a council facility.

The test which is used to balance freedom of speech in the European Court of Human Rights is a balancing act of proportionality. Proportionality is quite old European law originally derived from German courts in the 19th century. One of the best-known cases comes from Austria where the local authorities seized a film which was said to be offensive to Roman Catholics. In the Otto-Preminger-Institut case the Austrian authorities seized and confiscated the film based on Austrian law which said you could not show a film which “disparage[ment] of a dogma, a lawful custom or a lawful institution of [a] church or religious community. See ”Otto-Preminger-Institut v. Austria, 295-A ET. H.R. (ser. A) at 56. The court held that there was no violation of freedom of speech, and talked about balancing the exercise of freedom of speech together with duties and responsibilities, which can be said to include an obligation to avoid material which is gratuitously offensive to others, and which therefore don't actually contribute to any form of public debate. In this case they noted that the lower courts had considered the form lacked any artistic merit which may outweigh offence to the public. The decision of the court was not unanimous with 6 judges in favour of the ability to restrict, but with 3 judges who considered that there was little chance that anyone who went to see the full would be unaware of the controversial nature. For that reason they considered that seizure forfeiture was not proportionate, essentially because you could choose to see or not see the film.

In the case of these speakers, you also have the ability to choose whether you go to see them present their controversial ideas, and you certainly can see them present their ideas on many You Tube video clips, without any restriction. But it is important to remember that the decision not to permit council venues is not a decision to prevent them speaking. It is a proportionate response to the use of public facilities, when the interests of the public and of the ratepayers of Auckland, and their tolerance of the views to be presented, needs to be balanced against the rights of free speech. Because it is completely possible for these speakers to use a private venue, then the balance is appropriate in my opinion.

I was reminded yesterday (thank you Douglas) that Karl Popper in The Open Society And It's Enemies, had perhaps the last word on what is called the paradox of tolerance. He said

"Less well known is the paradox of tolerance: Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. — In this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise. But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant."

I should say at the outset that I agree with the decision of Mayor Phil Goff not to permit council venues to be used for the Canadian far right speakers Lauren Southern and Stefan Molyneux. Of course, his decision has no effect on whether they can enter the country and speak to an audience.. There is nothing to stop them renting private premises and delivering their message. All he has done is exclude them from publicly owned facilities.

The issue of whether they should be able to speak is not therefore actually affected by the decision. There are plenty of places where they could present their views, and there is nothing which the Auckland City Council, or for that matter any local authority can do if they choose to speak at a private venue. So there is considerable rhetoric about the right to free speech, although Phil Goff has only refused permission for public facilities. There is a balancing of responsibilities, but no actual suppression of any freedom to speak, except in the limited sense that they cannot speak at a council facility.

The test which is used to balance freedom of speech in the European Court of Human Rights is a balancing act of proportionality. Proportionality is quite old European law originally derived from German courts in the 19th century. One of the best-known cases comes from Austria where the local authorities seized a film which was said to be offensive to Roman Catholics. In the Otto-Preminger-Institut case the Austrian authorities seized and confiscated the film based on Austrian law which said you could not show a film which “disparage[ment] of a dogma, a lawful custom or a lawful institution of [a] church or religious community. See ”Otto-Preminger-Institut v. Austria, 295-A ET. H.R. (ser. A) at 56. The court held that there was no violation of freedom of speech, and talked about balancing the exercise of freedom of speech together with duties and responsibilities, which can be said to include an obligation to avoid material which is gratuitously offensive to others, and which therefore don't actually contribute to any form of public debate. In this case they noted that the lower courts had considered the form lacked any artistic merit which may outweigh offence to the public. The decision of the court was not unanimous with 6 judges in favour of the ability to restrict, but with 3 judges who considered that there was little chance that anyone who went to see the full would be unaware of the controversial nature. For that reason they considered that seizure forfeiture was not proportionate, essentially because you could choose to see or not see the film.

In the case of these speakers, you also have the ability to choose whether you go to see them present their controversial ideas, and you certainly can see them present their ideas on many You Tube video clips, without any restriction. But it is important to remember that the decision not to permit council venues is not a decision to prevent them speaking. It is a proportionate response to the use of public facilities, when the interests of the public and of the ratepayers of Auckland, and their tolerance of the views to be presented, needs to be balanced against the rights of free speech. Because it is completely possible for these speakers to use a private venue, then the balance is appropriate in my opinion.

I was reminded yesterday (thank you Douglas) that Karl Popper in The Open Society And It's Enemies, had perhaps the last word on what is called the paradox of tolerance. He said

"Less well known is the paradox of tolerance: Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. — In this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise. But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant."