Free speech: more work and fewer causes célèbres

Just when we thought it was all over, free speech is in the news again. Let me join the chorus stating the obvious that free speech is important to the values we hold dear as a modern democracy. It is one aspect of the fundamental right to freedom of expression, which is recognised and protected under the New Zealand Bill of Rights Act, and it is important that freedom of expression is protected.

But we often get distracted by the topical examples of the moment – the de-platforming of Canadian white nationalists, or the granting of a visa to Chelsea Manning. Those debates are important focal points, but they are a long way from the full story. So I want to consider a situation where (in my view, at least) the right doesn’t seem to be working.

Convicted murderer Phillip John Smith came to prominence in the New Zealand media not so much for his heinous crimes, but his daring and short-lived escape from prison. He fled to Brazil, and to the amusement (I think) of the general public, the initial success of the escape seemed to turn on the fact that Smith, who is completely bald, wore a hairpiece to (poorly) disguise his identity. I imagine a number of government officials were quite embarrassed by the whole incident. Nonetheless, Smith was apprehended and returned to the custody of a New Zealand prison.

On his return, prison officials revoked Smith’s right to continue wearing his hairpiece. He was self-conscious about his bald appearance, he said, and wanted to give the impression of having hair to fit in. The officials refused to grant permission, so Smith took them to court.

Smith argued that by refusing permission, the prison officials had unlawfully violated his right to freedom of expression, in this case manifesting as his right to present himself as he sees fit. The High Court found prison officials had indeed unlawfully breached the right. But the Crown appealed to the Court of Appeal and was successful. The Court of Appeal’s judgment considered wearing the hairpiece did not fall under the protected right to freedom of expression in the New Zealand Bill of Rights Act.

To which I say, really? I have no real sympathy for Smith as an individual, but to claim that a fundamental right was not invoked in this case seems to be an extraordinary finding. And that’s potentially concerning because it narrows the right to freedom of expression in ways that we haven’t yet fully debated as a society.

The case is complicated because what many people will see as the ‘right answer’ wasn’t available to the court. The law recognises that rights like freedom of expression are not absolute, but the trade-off is that the law will not restrict a right unless there is a good reason to do so.

And there are probably good, justifiable reasons to decline the request to wear the hairpiece in this context even though doing so would breach the right to freedom of expression. Safety and security in the prison environment seems to be an obvious one. But the prison officials did not base their decision on those considerations. They really just said ‘no’.

A cynical person might consider prison staff were actually motivated to punish Smith, particularly in light of the embarrassment he caused. But it’s unclear if that was actually the case, and it certainly doesn’t displace the right to freedom of expression even if that was what happened.

So the Court of Appeal was left with no real limits on the freedom of expression that it could apply on the specific facts of this case – it was really an all or nothing situation. Either the right is engaged in this context and therefore it applies (and Smith wins), or it simply isn't engaged in this type of case at all (and the Crown wins). The Court of Appeal went with the second option. But this wasn’t an easy decision to justify. There is good case law to suggest the very thing freedom of expression is trying to protect would apply in this case.

The most striking example from previous case law was a case concerning a nudist running naked through the woods. The courts have found the right to freedom of expression is engaged where a nudist expresses themselves through their nudity because this is (or is at least perceived to be) important to the nudist’s identity. They are manifesting that identity by drawing attention to their lifestyle, and the fact that it is so antithetical to prevailing norms only attests to how closely-held that belief in a distinctive identity actually is. So the right to freedom of expression is engaged.

This again creates problems for the Court of Appeal if it wants to accept the principle in the case about the nudist, but find for the Crown. The Court must somehow distinguish between the case of nudism (where freedom of expression is engaged) and Smith’s hairpiece (where they must find it is not).

And they do so, with respect, in the most strained and artificial way. What the Court ruled is that a nudist is seeking to differentiate themselves from prevailing norms and social expectations, whereas Smith is trying to fit in. His expression isn’t intended to cut against the grain. It is more similar, the Court argues, to the nudist running through the forest after putting his clothes back on. There is no longer anything distinctive or meaningful being communicated, and therefore the right to freedom of expression is not engaged.

But is it really valid to frame the key issue in this way? Surely the relevant interest that engages the right to freedom of expression is the interest in defining one’s relationship with the dominant group, whether that is conformity or differentiation. The value of free expression absolutely means different things to different people, and minorities may seek inclusion just as much as they seek to differentiate themselves through free expression.

I don’t think that’s a genuinely controversial point, so it seems to me that the Court of Appeal decision in the Smith case narrows the scope of legal protection of the right to freedom of expression in a way that is potentially concerning. If you are the member of a marginalised group, only the right kind of expression will be protected by our law. You have to be an active participant in some kind of counter-culture, not just someone trying to live your life on your own terms.

I think this misses something important about exactly what the freedom of expression is aimed at protecting. To my mind the crucial aspect is that a minority group or individual within that group is seeking to define its identity relative to the dominant culture. It's much less relevant whether that expressive act aligns with or runs counter to the dominant culture. Both can be important in context.

It would have been interesting to see whether the Supreme Court would have agreed with the Court of Appeal in the Smith case, but it never made it that far because the issue fell away. The prison officials revisited their decision and Smith is now permitted to wear his hairpiece while in custody.

But that is somewhat beside the point in a broader rights context. A judicial decision has been made, and our law clarified. We should be talking about whether that law actually reflects our views about what's important.

Why tell this story? Because it involves real issues with freedom of expression as it is recognised and protected in our law that need to be worked out. Vulnerable people need their rights protected, but there aren’t high-profile groups forming in response to these issues.

You might disagree with my views on these points, but they are part of a conversation that is worth having: Do we want to exclude the protection of the right to freedom of expression from people trying to fit in? Let's discuss. And what I would say here is that, if we really want to take the right to freedom of expression seriously, then we should pay more attention to these stories that slip through the cracks, not just the celebrity controversy du jour.

Dr Edward Willis is a lecturer in the Auckland Law School. He specialises in public law, with particular interests in constitutional theory, administrative decision-making, regulation and competition (antitrust) law.

Used with permission from Newsroom, Free speech: more work and less cause celebres published on 6 September 2018.