 |
| Fire-Starter? The claims advanced by BillyTe Kahika are false. The matter to be determined, therefore, is whether or not they are likely to cause panic. In ordinary times, the answer would be “No.” In ordinary times, the opinions of conspiracy theorists may be safely ignored. Indeed, in ordinary times, the state protects their opinions. Mr Te Kahika’s freedom of expression, as set forth in the New Zealand Bill of Rights Act, would not be infringed – in ordinary times. But, these are not ordinary times. |
JUST OVER A
CENTURY ago, an American socialist, Charles T Schenck, tested the boundaries of
free speech. He and his fellow socialist, Elizabeth Baer, were convicted under
the Espionage Act (1917) for distributing pamphlets opposing the conscription
of young American men for service in World War I. The pair appealed their
conviction to the US Supreme Court, citing the First Amendment to the US
Constitution’s protection of Freedom of Speech, but their conviction was
upheld. The celebrated American jurist and Supreme Court Justice, Oliver
Wendell Holmes, explained his decision in the following, famous, passage:
“We admit
that in many places and in ordinary times the defendants in saying all that was
said in the circular would have been within their constitutional rights. But
the character of every act depends upon the circumstances in which it is done.
The most stringent protection of free speech would not protect a man in falsely
shouting ‘Fire’ in a theatre and causing a panic… The question in every case is
whether the words used are used in such circumstances and are of such a nature
as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is question of
proximity and degree.”
The
“theatre” Holmes refers to is, of course, the United States at war. Schenck’s
arguments against conscription – by undermining the US war effort – were, in
the unanimous judgement of the Supreme Court, a direct violation of the
people’s will – as expressed in the US Congress’s declaration of war against the
Central Powers. Context, argues Holmes, is everything.
One hundred
years later, and half a world away, the issue of free speech and the context in
which it does, and does not, require the law’s protection is still very much
alive.
Earlier
today (13 August 2020) in Whangarei the Leader of the New Zealand Public Party,
Billy Te Kahika Jr, addressed a small crowd of people who had joined a protest
against the Government’s latest efforts to control the community transmission
of the Covid-19 virus. In the course of that address, Mr Te Kahika alleged that
the Government’s actions were part of a preconceived plan to deprive ordinary
New Zealanders of their rights. His speech reinforced arguments he had already voiced
on Facebook earlier in the week. Patriotic New Zealanders, Mr Te Kahika advised
his audience, were leaking information to him about the Government’s plans to
deploy the armed forces against its own citizens. Very soon, he claimed,
soldiers would be testing New Zealanders compulsorily for Covid-19.
These are
inflammatory claims, prompting the question as to whether or not Mr Te Kahika is
guilty of “falsely shouting ‘Fire’ in a theatre and causing a panic”?
Certainly,
the claims advanced by Mr Te Kahika are false. The matter to be determined,
therefore, is whether or not they are likely to cause panic. In ordinary times,
the answer would be “No.” In ordinary times, the opinions of conspiracy
theorists may be safely ignored. Indeed, in ordinary times, the state protects their
opinions. Mr Te Kahika’s freedom of expression, as set forth in the New Zealand
Bill of Rights Act, would not be infringed – in ordinary times.
But, these
are not ordinary times.
New
Zealanders need only look across the Tasman Sea, to the State of Victoria, to
understand the threat posed to society by an inadequate official response to
any resurgence of the Covid-19 virus. Many people will become sick. Others will
die. The local economy will be devastated. Any activity which threatens to
facilitate and/or augment these evils must, therefore, be considered, in
Holmes’s compelling phrase “a clear and present danger” to the common welfare.
It is very
difficult to interpret Mr Te Kahika’s activity as anything other than an
attempt to impede, undermine and in every way frustrate the Government’s
attempt to respond adequately to a proven resurgence of community transmission
of Covid-19 in the city of Auckland and, quite possibly, across the rest of New
Zealand. His unsubstantiated claims seem calculated to arouse fear, anger and
hatred among those least equipped intellectually, emotionally and materially to
challenge their veracity. When directed against those in authority, for
expressly political purposes, such falsehoods have the power to cause immense
harm.
If Holmes’s
important stipulation that “the character of every act depends upon the
circumstances in which it is done”, then Mr Te Kahika’s actions can only be
described as extremely reckless and irresponsible. Conscious, that they could
quite easily contribute to a significant lessening in the public’s willingness
to comply with the Covid-19 regulations – and, hence, to the spread of the
virus – the Government would be entitled to take all necessary measures to
silence Mr Te Kahika and his political
lieutenants.
The only
consideration militating against such a course of action is likely to be
whether or not the silencing of Mr Te Kahika would be more, or less, likely to
facilitate the very substantive evils it was intended to prevent. While the
crowds he speaks to remain as small as Whangarei’s, it is probably not worth
making a “free speech” martyr out of Mr Te Kahika – especially if such
martyrdom constitutes an important part of his election campaign. The
Government would, nevertheless, be wise to keep a close eye on the NZPP and its
inflammatory leader, and both eyes on the size of the crowds they attract.
My own
principled attachment to free speech is well attested, and, just for the
record, I believe the US Supreme Court was wrong to convict Schenck and Baer
for opposing the draft. I do, however, concur entirely with Justice Holmes that
freedom of speech gives no person the right to shout “Fire!” in a crowded
theatre.
Nor to
undermine the efforts of our government to preserve New Zealanders’ lives in
the face of a global pandemic.
This essay was originally posted on The Daily Blog of Friday, 14 August 2020.
