Protecting Freedom/Preventing Harm. Can New Zealand’s New Chief Censor Do Both?

A Delicate Juggler? Internal Affairs Minister, Jan Tinetti (above) has appointed Ms Caroline Flora as Chief Censor. Ms Flora owes New Zealand a comprehensive explanation of how she intends to juggle her duty to respect and protect the citizen’s right to freedom of expression, with her understanding of what is likely to cause society harm? 

IT IS TO BE HOPED that the new Chief Censor, Caroline Flora, will waste no time explaining herself. It is important that New Zealanders are told how her old job, Associate Deputy-Director Strategy and Performance, at the Ministry of Health, made her the obvious choice for her new job.

According to Peter Dunne, the Minister of Internal Affairs responsible for the appointment of Ms Flora’s predecessor, David Shanks: “The Chief Censor is responsible for protecting New Zealanders from material likely to cause harm while balancing the important right to freedom of expression”.

Clearly, the person tasked with this delicate legal and cultural juggling act should be someone with a solid background in law, and more than a passing acquaintance with philosophy, political history, the arts and literature, film, television, and social-media. Are these the core competencies required of the Associate Deputy-Director Strategy and Performance at the Ministry of Health? They may well be, but the prima facie case is not strong.

Which is why Ms Flora owes New Zealand a comprehensive explanation of how she sees, and how she proposes to carry out, her role. Where, for example, is her duty to respect and protect the citizen’s right to freedom of expression positioned in relation to her understanding of what is likely to cause society as a whole, or a vulnerable sub-section of it, “harm”. How does she define harm? A question which, depending on how Ms Flora answers it, will play a central role in how she carries out her responsibilities.

It is vitally important to remember that freedom of expression relates not only to the citizen’s right to communicate his or her thoughts and emotions to others, but also to their right to have their thoughts and emotions excited and stimulated by the communications of others. Our own Bill of Rights Act spells it out: “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.” In other words, the right to emulate Shakespeare, as well as the right to read and watch Shakespeare’s plays.

What threshold will a book, play, film or video have to cross before Ms Flora bans it? Would she consider banning the performance of Shakespeare’s Merchant of Venice on the grounds that it is antisemitic? Would she ban a film which presented a young person’s decision to transition from female to male in a negative light? Would she pull from the bookshelves a work of history that purported to prove that the chiefs who gathered at Waitangi in 1840 knowingly surrendered their sovereignty to the British Crown? Would she prohibit the distribution of a video depicting Islam as a religion of violence?

One would hope that the new Chief Censor’s answer to each of these questions would be an emphatic “No.” But, considering the censorious times we are living through, it is, sadly, necessary to ask. From the Caucus Room to the Common Room, the urge to shut-down and shut-up those accused of inflicting “harm” on others is strong – and getting stronger.

In the United Nation’s summary of the “International Bill of Human Rights” the notion of harm is spelled out in relation to communications inimical to the free exercise, individually and/or collectively, of those rights and freedoms the International Bill of Human Rights was created to protect. The latter provides for protection of the rights to freedom of thought, conscience and religion, and to freedom of opinion and expression. Significantly, it also calls for the “prohibition by law of any propaganda for war and of any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”

If this is Ms Flora’s definition of harmful “speech”, then she will find most New Zealanders are in agreement with her. Incitement of ‘discrimination’, ‘hostility’ and ‘violence’ would strike most of us as a sensible test for determining whether material not already defined as “objectionable” in the legislation establishing the Chief Censor’s office should be deemed so.

Were Ms Flora, in explaining herself to her fellow citizens, to refer approvingly to the legacy of her erudite and classically liberal predecessors, Arthur Everard and Bill Hastings, many of them would breathe a huge sigh of relief. They could then feel reassured that the Chief Censor’s power to rule a particular instance of communication objectionable (invoking all the powerful legal sanctions associated with that term) would be used both wisely and sparingly.

The worry, of course, is that Ms Flora will use the powers of her office to extend its reach into the communication of ideas and policies that, while falling well short of inciting discrimination, hostility or violence, nevertheless are likely to upset and alarm specific individuals or communities.

The new Chief Censor’s background in the upper reaches of the public service raise fears that her institutionally-honed inclination will be to move in the direction of the incumbent government. Given this Government’s growing obsession with misinformation, disinformation and extremism, driven by the Christchurch Mosque Massacres and the Covid-19 Pandemic, it would be helpful to know whether Ms Flora plans to go with the flow, or stand against the tide. Will she be guided by the fundamental tenets of classical liberalism? Or, will she be moved by the definitions of extremism supplied last year to the Department of Internal Affairs by the UK-based Institute for Strategic Dialogue? If it’s the latter, then freedom of expression in New Zealand could take a hit.

This is why the new Chief Censor owes New Zealand a clear explanation of where she stands, and where she would like to go. Ms Flora is taking up office in a climate of deepening antagonisms between ethnicities, identities and faith communities. If the Labour Government’s announced intention to criminalise “hate speech” is expedited by the new Minister of Justice, Kiri Allan, then the Office of the Chief Censor, along with the Human Rights Commission, will find themselves caught between the Devil and the Deep Blue Sea. The dual mandate set out by Peter Dunne: to protect New Zealanders from “material likely to cause harm while balancing the important right to freedom of expression” can only become harder and harder to fulfil.

This essay was originally posted on The Daily Blog of Thursday, 16 June 2022.

The Political Economy Of Shock-Jockery.

Silenced: MediaWorks’ decision to take veteran journalist Sean Plunket off the air raises some very disturbing questions about the survival of political diversity in New Zealand.

LAST WEEK, Sean Plunket was awarded the DCM. Mere days after John Banks, standing-in for his fellow right-wing broadcaster, Peter Williams, was driven from Magic Talk Radio’s microphones, Plunket was abruptly advised that his services as the station’s “Magic Afternoons” host were no longer required. Magic Talk’s decision was made amidst the furore created by Banks’ failure to fight on-air racism with sufficient zeal, and the subsequent threats from its major advertisers to withdraw their support. Did the prospect of the right-wing contrarian’s imminent return prompt at least one of those major advertisers to issue Magic Talk’s proprietor, MediaWorks, with an ultimatum? Something along the lines of: “If Plunket stays, we go”?

Plunket’s position at Magic Talk was already somewhat precarious. In December of last year, the Broadcasting Standards Authority found against the veteran broadcaster for what it deemed to be his “offensive and harmful” comments to a spokesperson from Te Whānau ā Apanui – the Maori iwi manning Covid-19 check-points in the Eastern Bay of Plenty. Magic Talk was reprimanded and fined $3,000 for Plunket’s breach of broadcasting standards. Already acutely sensitive to accusations of racism, their top shock-jock’s outspokenness was, almost certainly, top-of-mind among the station’s bosses – and advertisers.

MediaWorks’ decision to take Plunket off the air, if it stands, raises some very disturbing questions.

On the face of it, his fate appears to have been determined by the opinions he holds, which, if established, would constitute a clear case of discrimination on the grounds of political belief. If upheld by the Human Rights Commission, such a violation of a New Zealand citizen’s rights and freedoms, as set out in the Bill of Rights Act 1990, could end up costing his employer a great deal more than $3,000.

Presumably, a broadcaster in Plunket’s position, would argue that he was hired because of, not in spite of, his right-wing political beliefs. Having failed to enlarge its listenership by delivering a programme-mix tailored to the prejudices of centrist and left-leaning New Zealanders, MediaWorks (via Magic Talk) would be accused of re-orienting itself towards a much more conservative demographic. In this regard, Plunket’s right-wing contrarian style would have been exactly what they were looking for: a feature, not a bug. To take a person off-air for doing exactly what his employers’ business-plan required of him, seems just a tad unfair.

In its current form, however, it is difficult to imagine the Human Rights Commission wanting anything less than the responsibility for determining whether or not the rights and freedoms of a citizen in Plunket’s situation have been violated. Indeed, it is hard to avoid forming the impression that the NZ Bill of Rights Act 1990 has become a source of considerable embarrassment to the Human Rights Commissioners responsible for its enforcement. In the current “woke” climate, the key sections of the Act are inconveniently uncompromising.

Section 13 of the Bill of Rights Act 1990, for example, guarantees to all New Zealanders freedom of thought: “Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.” Even more inconveniently, Section 14 grants them the freedom to express those opinions: “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.”

In the past, radio stations and television networks have guarded these rights and freedoms jealously. Indeed, there was a very strong tradition in both public and private broadcasting that “news and current-affairs” and “advertising” – like matter and anti-matter – should never be allowed to meet.

This tradition was about more than the broadcasters’ attachment to liberal-democratic principles. Radio and television, no less than newspapers and magazines, pitch their product at different socio-economic segments of the media market. Among the many factors contributing to the profile of these “demographics” is ideological predisposition. Newstalk-ZB, for example, makes its profits out of an older, whiter, less credentialled, and generally more conservative demographic of listeners. Advertisers buy air-time for products and services tailored to fit this demographic profile. They want Mike Hosking’s audience: and, until very recently, that required them to, at the very least, tolerate Mike Hosking’s listeners’ less-than-woke political views.

It is very hard to believe that MediaWorks’ advertisers were unaware that Magic Talk Radio had pivoted right, away from RNZ National’s demographic and towards Newstalk-ZB’s. It is equally hard to credit that Sean Plunket and Peter Williams were not presented to them as powerful magnets for the folk who were missing Newstalk’s arch-conservative host, Leighton Smith. Surely, they would have understood what sort of political discussions their ad-breaks would be interrupting?

What are we looking at, then, when we see corporations threatening to pull their ads from programmes whose listeners come from the very demographics they are targeting? Are we witnessing an intra-corporate triumph of woke PR mavens over hard-working marketing grunts?

The answer is, almost certainly, “Yes”. Overwhelmingly, the graduates pouring out of this country’s “communications studies” courses and into corporate PR are young women who, for years, have been schooled in the uncompromising dogma of social radicalism – especially feminism and anti-racism. When they learn (via Twitter, Instagram and Facebook) the awful truth about the latest shock-jock’s racist outrage, their first instinct is the get their employers’ brand as far away from the perpetrators’ “toxicity” as possible. Failure to “get ahead of the problem”, their bosses are cautioned, will lead directly to consumer boycotts. The “Roastbusters” precedent will be cited. To date, their bosses have demonstrated little need for further persuasion.

This is politics – albeit of a particularly bizarre kind. Attempting to homogenise ideologically an irreducibly diverse market makes as little sense for capitalists as it does for political parties. Imagine what would happen to the National Party if it produced a policy programme that matched Labour’s in every respect. How would conservative voters respond? Either, they would pressure National MPs to force the abandonment of their party’s new centre-left orientation, or, if that proved impossible, they would begin casting about for a new party to champion their values and beliefs.

At some point in the near future, it will occur to senior corporate executives that what’s sauce for the woke goose might also be sauce for the aggressively right-wing gander. Take too many conservative voices off the air and eventually their fans will band together and announce a boycott of their own. At that point, corporate CEOs are going to have to do what politicians have always done: learn to count: “What is the volume of sales that we are likely to lose if the woke boycott us? Is it larger or smaller than the volume we will lose if conservative Kiwis stop buying our products?”

Similarly, how long will it be before one or more local (or overseas) capitalists grasp the possibilities of establishing a Fox News-type media entity right here in New Zealand, and using it to seize more-or-less the entire conservative demographic? How biddable will corporate leaders be if the size of its right-wing audience turns out to represent a clear plurality of the New Zealand population? Whose threats of boycott will count for more then: the Woke’s or the Right’s?

If the New Zealand news media persists in the folly of “cancelling” all those listeners, viewers and readers who fail to pass ideological muster, then we will see the emergence of our own version of Fox News – with all that entails for the health of our country and its democratic institutions. Who would lead it? Do we have a Hannity, or a Tucker Carlson, waiting out there in the wings? Where to start looking for a talented right-wing contrarian, boasting years of professional broadcasting experience, who is currently between jobs?

This essay was originally posted on the Interest.co.nz website of Monday, 8 February 2021.