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Okay, have at me

By Steven | May 11, 2008

This blog is mostly about free speech. It should be becoming clear that my philosophy is that freedom of expression is extremely important and that any limits on it should be carefully defined and properly justified. That philosophy tracks closely with the framework of the Bill of Rights Act, which is relevant to almost all speech issues in NZ, and that’s why I often discuss it and get steamed up when (as often happens) it is overlooked or poorly applied. I’m about to run a series of posts taking pot-shots at the system for checking compliance with the Bill of Rights before bills are introduced into Parliament.

So: I expect there are people out there who would accuse me of hypocrisy for supporting the Electoral Finance Act.

I don’t think I’m being hypocritical. I accept that electoral finance laws limit speech, but I argue that the advantages of reform meet the test of demonstrable justification under section 5 of the Bill of Rights Act. I set out some of my arguments here. I absolutely accept that others disagree, and do so strongly. Still, I am not blindly cheering for the Electoral Finance Act. I think (and have said) that the process followed by the government was terribly flawed, that the first version of the bill contained unjustified restrictions on speech, and that the new law isn’t perfect.

I don’t especially want to get into a debate about the nuances of the law. Go to NoRightTurn or Kiwiblog for that. But I thought I’d carve out a space for people to give me a slap over this if they feel like it.

I think I might kick things off by linking to Bryce Edwards and Stephen Franks, who hold contrary views.

Topics: Electoral speech, NZ Bill of Rights Act | 9 Comments »

9 Responses to “Okay, have at me”

  1. dpf Says:
    May 11th, 2008 at 7:49 pm

    Here’s what I find puzzling. On almost every other issue of free speech except the EFA, you are admirably liberal. You stand up for the rights of people to burn flags and harass Police. And I admire that and agree with you. I am reminded of the saying there is no virtue in supporting only popular speech.

    But then with electoral speech, you appear willing to justify so many restrictions on the grounds of “demonstrable justification” – especially the whole concept of a year long regulated speech period.

    And I wonder how one balances up standing up for the right for a drunken yob to call the Police rapists (and I agree with you on that one) with the support for a law which places significant restrictions on hundreds of law abiding citizens from being able to have their say in election year, with a minimum of bureaucracy.

    I understand you say the EFA is not perfect, and you say well a flawed law like the EFA is better than no new law in this area. But such an ummm pragmatic approach seems at contrast with what I see as a much more principled approach in other areas.

    I would be interested to hear from you, whether you agree with Nicky Hager that the regulated speech period should in fact not just be all of election year, but the entire electoral cycle – ie always.

  2. Steven Says:
    May 12th, 2008 at 1:25 pm

    In the first place, one of the best things about the EFA is that it finally starts to get serious about donation transparency by tackling secret trusts etc. It probably doesn’t go far enough, but it’s a damned sight better than we had before. I don’t think many people disagree with this.

    As for the restrictions on political advertising, I accept that they go to the heart of our right to free speech. I accept that they come with some grey areas that aren’t desirable. I accept that there are arguments that the restrictions are greater than they need to be. But I think the aims being served are so significant – the proper operation of democracy, no less – that some restrictions are justified. As, in fact, do you.

    Two examples in particular make me think the threat of money being used to swing elections is a real one. The first was watching the extremely well-funded anti-MMP campaign, using a barrage of crying-baby ads that added much to public fears but little to the debate, increasingly sway public opinion against MMP. With another two weeks or $100,000 they may have succeeded. (I support MMP, but I like to think that my concern would have been the same if it were the pro-MMP crowd who were using a small shadowy collection of wealth backers to finance a campaign based on crying babies).

    The second is the “Swiftboat veterans for truth” ads in the US that misleadingly pilloried John Kerry’s war record. I wasn’t much of a fan of Kerry, but this incredibly unfair and expensive ad campaign may well have cost him the election.

    Bryce Edwards can argue all he likes that there is no necessary correlation between spending and public support. He’s probably right. But the point is that money can make a big difference sometimes. And I think a political system requires a degree of transparency and equality-of-arms that help ensure that elections are about people choosing – as much as possible – on the basis of competing policies not competing advertising budgets.

    The importance of that goal justifies a margin of pragmatism in achieving it. No solution is going to be perfect (though of course there are degrees of imperfectness…).

    Remember, too, that I think the courts are likely to take a fairly narrow view of the application of the definition of electoral advertisement, in keeping with s 6 of the Bill of Rights Act, and the clear Parliamentary intention that it not unduly affect issue-advertising. So, for instance, I have little doubt that no court would find Winston Peters’ China-FTA ad to be an election ad.

    Finally, I would emphasise that the national spending cap for third parties ($120,000) is not likely to affect very many people/organisations at all. How many people do you know who want to spend more than that?

    And no, I don’t agree with Nicky that the regulated speech period should be the entire electoral cycle.

  3. Anita Says:
    May 12th, 2008 at 6:18 pm

    Something about this debate has baffled me for a while, and this seems a great opportunity to get myself unbaffled 🙂

    Is there a difference between the freedom to speak and the freedom to buy amplification?

    The Electoral Finance Act, as far as I can tell, doesn’t curtail speech – anyone can spend as much of this time as they like wandering up and down streets says “Do you have a moment? I’d like to tell you about …”.

    What it does do is limit the extent to which they they can buy amplification of that speech; limiting the number of billboards, newspaper ads, pamphlets and so on they can buy, as well as preventing them hiring a squadron of students to join them bothering strangers.

    While it prevents them purchasing amplification, it doesn’t prevent them winning it other ways; e.g. convincing their mates to help them, or getting media coverage by being eloquent, controversial or funny.

    To me that is a sensible distinction, almost all of us can speak to others, can convince others, can have a try at being eloquent, controversial or funny. But purchasing amplification is somewhere we don’t start off equal – which is a pretty fundamental issue when it comes to democratic participation.

    So the EFA appears to separate freedom of speech from freedom to purchase amplification. Is that distinction usual? Does it fit cleanly into theorising about freedom speech?

  4. Steve Withers Says:
    May 13th, 2008 at 7:45 pm

    The EFA isn’t about free speech. It’s about removing the ability of powerful, effectively anonymous interests to dominate public discourse though massive media buys. I am just as free today to say whatever I want as I was before this law was passed. So is everyone else. What I cant do and you can’t do and no one can do is spend a million or several in an election campaign to mislead people about whatever. For example, there was NO effective way to provide redress for the false or misleading claims the Exclusive Brethren made in their pamphlets prior to the last election. The horse had bolted. Nothing could be done.

    The only way to deal with such things is to prevent them. They can’t be dealt with after the fact.

    For what it’s worth the Canadian federal electoral finance laws are much more strict as are the provincial electoral finance laws in the Canadian province of Ontario. They have been struggling with the same issues.

    The aim is to prevent the US-style money-chest assaults on truth that have become far too common in that country.

    The secret trusts of the National Party, with money from who knows where, the union money here in NZ extracted from union dues, the tithes from church members, witting or not. Who’s “speech” is this?

    The new law does not restrict me or anyone else from saying what we please. We just can’t shout everyone else down, out of all proportion to our own status as an individual citizen.

  5. Steven Says:
    May 13th, 2008 at 9:25 pm

    Yes, there is a distinction to be made between being able to speak and being able to amplify. But amplified speech is still speech, and restrictions on it need to be justified. In general, it’s a good thing when people want to share their ideas with others, and amplification, as you call it, may be the only realistic way to do so, even if many means of amplification are only available to those who can afford it.

    So Anita and Steve are hitting on an important feature of the law: it doesn’t stop any unamplified speech, or even speech that’s amplified through cheap measures (letters to the editor, etc), though it does provide a mechanism for ensuring that we know the identify of speakers. And the registration thresholds and caps kick in at levels beyond the ability and/or inclination of the vast majority of us to spend on political speech.

    But restricting spending on political speech is still restricting that speech. And if you think that the harms caused to potential speakers and listeners and society as a whole by the restriction and chilling of that sort of speech outweigh the benefits (as I outlined them in my post in response to David) then you’ll oppose those restrictions.

    So you’ll see that I’m not quite with Steve that there’s no free speech issue here. And I’d note that Canadian federal election laws are indeed more restrictive of speech, but they are only in place for 5-8 weeks before the election, which makes quite a difference.

  6. Steve Withers Says:
    May 14th, 2008 at 12:46 pm

    I like Anita’s distinction between speech from amplification of speech. As she says, we can all seek the support of others by establishing relevance / interest and being rewarded by attention. Any of us has the potential to do that and PEOPLE are the fundamental unit of democracy, not money. What the ability to amplify speech with money does is remove the need to persuade others to support and spread your ideas – person to person. Instead, you can shout over everyone’s head without any need to establish relevance or interest or credibility. I also agree this is the right direction to go. People needing to persuade others to work with them and share a message to win heats and minds. ‘Person to person’ is, in my (hopefully humble) opinion, the essence of democratic consensus gathering in a level playing field where we are each citizens and voters…..not powerful interests speaking disproportionately “loudly” according to the depth of the pockets.

    While it may still be a limitation on “volume” it isn’t a restriction of freedom of speech itself. Each of us is still free to say whatever we want.

    I’d characterise it as regulation of the amplification of speech to ensure speech oligopolies do not dominate and destroy the competitive market of ideas. Kerbing anti-competitive forces.

  7. Steven Says:
    May 14th, 2008 at 10:37 pm

    Okay. I ban all newspapers and television stations and magazines, and also outlaw anyone using a megaphone or even photocopying a pamphlet for distribution to neighbourhood letterboxes about lost cats. Still, anyone can say whatever they like, they just can’t amplify it.

    On your logic, that doesn’t create free speech issues.

  8. Prestwich Says:
    May 15th, 2008 at 6:32 pm

    On the issue raised concerning the amplification of speech, what do you believe is an adequate restriction? In other words how much in terms of a donation is too much – even when the donor is identified? I suppose my concern is the ever-growing power of business to dominate the public policy agenda. Our two main parties, National and Labour continue to converge towards the centre on many issues arguably in an attempt to pursuade corporations to pay for their campaigns, whilst the underpriveledged struggle to be involved at all. The reality of politics this may be but I stil believe, as do you (correct me if I’m wrong!) that large donations should be kept in check.

    Also, Bryce Edwards raises an interesting question on a potential kink in the legislation. Why should website creators/owners be forced to give their names and residential address and be put at risk of abusive calls, letters and damage to property? Is this provision absolutely necessary and a trade-off for transparency or a step too far for those trying to express their views using the internet as you are? (I realise that blog-site owners are exempt from this provision)

  9. Steven Says:
    May 15th, 2008 at 6:42 pm

    I agree that large donations need to be kept in check (and at the very least should be transparent). As to the details of the appropriate restrictions, that’s the sort of debate about parameters that I don’t really want to get into again here. Do feel free to check out the Coalition for Open Government’s submission at, which I had a hand in.

    As for websites, it’s only non-commercial blogs that are exempt. There’s a case to be made that websites have an increasingly powerful influence, especially if the creators have lots of money to spend on making them and (probably more importantly) finding ways to drive traffic there. One of the things that needed to happen to our law (which used to be only about “handbills” and the like) was some serious updating to take account of changing technology. Why should websites be excluded from the usual regime? Whether the line has been (or can easily be) drawn in the right place is for people to debate.

    But really… abusive calls and letters? Damage to property? Is there any evidence that anyone is responding to political ads that way, beyond what’s always happened (defacing billboards etc) or beyond what’s pretty standard in blog threads anyway?


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