Tuesday, 1 October 2019

The Free Speech Coalition has just helped to undermine free speech.

In seeking a High Court review of the Auckland Council's decision to cancel a talk by Lauren Southern & Stefan Molyneux, the Free Speech Coalition risked creating a fearful precedent. Unsurprisingly, news has just confirmed that the Coalition has lost the case. Fortunately, however, it seems the Court has not created any of the precedents we feared.

That they didn't is perhaps only pure chance.

In taking this case, the Coalition did not seek to reverse the council's decision -- the speakers have long returned home, and one of them (Southern) has now announced her retirement from future combat. They sought only the creation of a legal precedent that would force future councils to provide venues for "political dialogue" whenever demanded.  Writing [here and here] at the time of cancellation, I and a fellow guest poster had argued that the Coalition's decision to take the case was a poor one.

Despite their battery of QCs advising and arguing on their behalf, we argued that the Coalition's case had no basis either in law or on the principles of free speech; that, in this instance, council were acting not as all-powerful territorial authorities (which they are, but should not be) but as property owners (which they should not be, but are), and that [as we summarised here] in taking this case the Coalition risked instead creating a precedent that could threaten both speech and property owners:
  • by confirming that the Human Rights Act trumps the Bill of Rights Act; and since
  • the council was acting as a property owner rather than as a territorial authority, condemning owners of all public venues to be told whom and who not they may host on their own premises.
The case was lost. But while the precedent set is bad, it is not so bad as we feared.

The court did determine that in cancelling the event, the council was not exercising any "public power," but only that of any property owner. But because it was not exercising any public power, the court held that neither the Bill of Rights Act nor the Human Rights Act was relevant to the case. This at least is a relief.

In agreeing however with the council's claim that the decision to cancel was made "exclusively with regard for health and safety considerations arising from anticipated protest," the court has now handed a fresh and legally-minted Thug's Veto to anybody publicly wishing ill on any speaker they would like to "deplatform." This will mean that if controversial events are to go ahead in future in the teeth of public protest, they will require both a "comprehensive security plan and risk assessment," and the sort of courage that Massey University is belatedly showing.

In trying to smack the Council this time, the Coalition's ill-judged legal action threatened to have property owners smacked for all time. Thankfully, they have not been smacked. But all speakers, to the degree they make themselves unpopular, have been harmed.

1 comment:

  1. You're on point, Peter, as usual.

    My specific concern last year was that provisions of the Human Rights Act would be used by the council’s lawyers to argue for the right to freedom *from* speech. On cue, the Human Rights Commission offered its arguments to the court on behalf of the council along those lines. In the court’s finding, the judge called the Human Rights Commission’s arguments ”interesting", but did not account for them in making final judgment. In other words, there may be another home goal waiting in the wings should the next fight not be fought based on the correct legal premise: that of property rights.


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