Legal Beagle by Graeme Edgeler


Why the censor's total ban on possession of "the Manifesto" is wrong

On Saturday, New Zealand’s chief censor, David Shanks, issued a decision declaring the manifesto of the man accused of the Christchurch Mosque shootings to be objectionable. That means it’s banned, and as unlawful to possess as images of child sexual exploitation.

This has been somewhat controversial. The decision follows from less controversial decision to ban the live stream of the video itself.

Decisions like this have been taken before in New Zealand. These resulted in more than one person being convicted for possession of ISIS-related material, including one person sentencd to 3 years and 9 months in prison.

I ban relating to the video of the shooting makes sense to me, but the decision to impose a total ban with respect to the manifesto concerns me, which I detail below. It is important to be clear about what exactly those concerns are. Objections to this decision come in two broad types: concern with the application of the law by the Chief Censor, and a broader concern that our censorship laws might allow something like this to banned.

I have several concerns about our censorship laws, and I assume that similar concerns may be behing the Free Speech Coalitions's opposition to this decision, but I haven’t read the manifesto, so the question of whether, the law should ban this at all, is not something I can competely answer.

Instead, for now, I am taking the Censor at his word. I adopt his analysis of the document itself, and its effect if made available to the public and – accepting all of those things as correct – am still wondering why he imposed a complete ban.

Some background in New Zealands censorship laws is helpful. Importantly, the censor is not limited to declaring a publication to be objectionable (ie banned); he also has the option of saying: well, this publication would be objectionable, if it was available to this group of people, so we’ll restrict it.

Usually, this is based on age. For example, a number of years ago now, it was concluded that it would be objectionable for 14 year-olds to watch Saving Private Ryan (which contains realistic war violence) in theatres, or on DVD, so we restricted the ability to watch it in theatres, or to watch or possess the DVD or Blu-ray, to those who are 15 or older.

But age based restriction, while being by far the most common type of restriction, is not the only restriction: the film Baise-moi, which was controversial a number of years ago has a restriction that says it would be:

Objectionable except if:

(a) the availability of the film is restricted to persons who have attained the age of 18 years; and

(b) the film is used for the purpose of: (i) theatrical exhibition; or (ii) exhibition to participants in a tertiary media studies course or a tertiary film studies course.

This means that being 18 isn’t enough. To be able to lawfully watch this film, it must be part of a film festival (ie a theatrical exhibition) or it must be as part of tertiary-level film or media studies. There are 227 films listed on the Classification database that are similarly limited to being part of a film festival or film society screening.

A Clockwork Orange was originally rated:

Restricted to persons 20 years and over and to 6th form, 7th form and tertiary students under that age only if the film is a legitimate part of their study curriculum and written consent is supplied by the parent or guardian of any such student under 18 years of age.

[The film is now a simple R18]

The Censor has sometimes limited possession of a publication to a single person (the image file 100_0806.jpg is restricted to the person it depicts – I don’t know what it is, but I’d guess it might be for example, a consensual nude selfie, taken by a person under 16).

With the wide options available to the Censor, one particular type: the censor may restrict the right to possess a publication to a class of people.

In the past, one publication was declared:

R Govt Consultation
Objectionable except in the possession of Ministers of the Crown, staff of Ministers of the Crown, and staff of Government departments or Government organisations engaged in work or research for the Ministry of Culture and Heritage's Convergence and Content Consultation as part of the New Zealand Government Convergence Programme

Others have included manuals related to particular types of weapons, where the possession of the book is restricted to holders of particular firearms licences, or material which treatment psychologists have been permitted to see to allow them to treat people; and the book “Guide to a Humane Self-chosen Death”, which was restricted to members of the Euthanasia Society.

These sorts of nuanced decisions, recognising that a publication may harm society if released generally, even when limited to adults, but that there may be specific groups of people who have a legitimate interest, who should be permitted to possess that publication, and whose possession of that publication does not cause harm to society (perhaps may even do good) are important: they ensure that New Zealand’s censorship laws do not over-reach. In a rights conscious society, they are ensure that limits on people’s rights are proportionate, that they do not go beyond what is necessary to achieve the policy aim of the restriction.

Why is this relevant to the manifesto of the man accused of the Christchurch Mosque shootings?

Noting, again, that I haven’t read it, I’m adopting the censor’s analysis: what harm does he foresee if there is widespread availability of this document? In his own words:

“Most people reading the publication will not be harmed by it. “Most New Zealanders who have read this will simply find it repellent. But most New Zealanders are not the target audience. It is aimed at a small group who may be receptive to its hateful, racist and violent ideology, and who may be inspired to follow the example set by its apparent author.”

And why would it be bad:

“It promotes, encourages and justifies acts of murder and terrorist violence against identified groups of people: [and] it identifies specific places for potential attack in New Zealand, and refers to the means by which other types of attack may be carried out. It contains justifications for acts of tremendous cruelty, such as the deliberate killing of children.”

Even recognising that not all publications that are illegal are objectionable (for example it a crime to make death threats in New Zealand, but possession of a written death threat isn’t a crime), avoiding this getting into the hands of others is a legitimate purpose. And banning most people from seeing it as a way to avoid it getting into the hands of even one person who may be affected by it in a way detrimental to Society may be justified? But is there a class of people whose interest is greater than that of the general public, and whose possession of the document would not cause these harms?

I think there is, and the reason I think this is that the censor thinks there is. He says:

"We also appreciate that there will be a range of people, including reporters, researchers and academics, who will be in possession of the publication for a range of legitimate purposes, including education, analysis and in-depth reporting."

And this is where the censor and I part company. Given that he views members of the news media as a class of people with a legitimate right to have access to the manifesto, I consider that should be accounted for it the rating imposed.

I can see that there would be a risk in passing a restriction that merely allowed someone who claimed to be a journalist to possess this manifesto, but I do not believe it is beyond the abilities of the censor to craft a restriction that limits access to those whom we as a society do not want to have the encouragement and plans to act, while allowing it those reporting on this case of the highest public interest. I am open to amendment, but propose the following as better reflecting the balance even the censor acknowledges is appropriate:

Objectionable, unless restricted to paid employees of news media organisations subject to the codes of the New Zealand Media Council, or the Broadcasting Standards Authority.

The censor has proposed that such people could “apply for exemptions, so they can legitimately access and hold a copy.” I do not think this is good enough, at least with respect to journalists

First, the requirement for a journalist or a news media organisation to apply in advance and to wait for permission is offensive to general freedom of the press concepts.

These types of restrictions, known as prior restraints, are just really bad. Journalists should not have to ask permission for a state agent to be able to their jobs. They shouldn’t have to pay money for this privilege, and they shouldn’t have to wait for a decision to be made. I have never needed to apply for an exemption from the Censor, but I have on a couple of occasions, as part of reporting I was doing, needed to apply for prior permission before publishing something. One occasion took months, even when I provided a draft of the article I wished to publish. The other occasion took six weeks, and a $600 High Court filing fee, for a request to report entirely non-controversial information that was already public. Even delays of a few days may be entirely unreasonable in the circumstances.

I accept that this sort of prior restraint, may be a reasonable limit for people who might need access who can’t be simply included in a class which, if lawful possession of the manifesto was limited to them, would ensure that the feared harms to not eventuate.

Finally, given a slightly less restrictive option is available, the censor’s approach is not the least available restriction necessary to meet the objective sought.

I believe my proposal (or another formulation of it that people with more experience in this area can come up with) would better achieve this. Perhaps even my wording goes too far, but the argument is hard to make without greater knowledge of the document itself. My proposal would ensure that journalists, could not, for example, place the manifesto on-line, or provide it to non-journalists. And it would still allow the random members of the public found in possession of the document (or disseminating it) could be prosecuted if appropriate, or have the material seized from their possession. In short, the harm that society seeks to diminish through the censorship process would still be addressed, without subjecting legitimate news media to a prior restraint.

I take issue with a number of aspects of our censorship law, including some which have application in this area. A group like the Free Speech Coalition will have my backing for many possible campaigns against aspects of the law, but for today, I don’t need to get into these. It seems clear to me that, even accepting that everything the censor has said about this manifesto is true, his decision does not properly balance the rationale he gives for trying to stop widespread availability of this documents with the proper place of the news media in an open democracy.

The decision appears to be wrong, and if any journalist or news media organisation wants help challenging this decision before the Film and Literature Board of Review, I am happy to offer mine.

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