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A burning issue

By Steven | July 25, 2008

I’m afraid my tirade about the ridiculousness of Valerie Morse’s conviction for burning a flag didn’t do any good. She lost her appeal to the High Court.

Morse burned a flag at last year’s Anzac Day dawn parade at the Cenotaph in Wellington. She was gathered with other protestors in the university grounds over the road. She burned it just as the former Secretary of Defence began to address the crowd of 5,000. She burned it to spark political debate about NZ’s involvement in Afghanistan. While she burned the flag, the guy next to her blew a toy trumpet.

People at the dawn parade were upset and angry. Morse was convicted of offensive behaviour.

Note what she wasn’t convicted of: flag-burning. That’s a separate offence – and, you would have thought, the right one to charge here. Perhaps they couldn’t get the Attorney-General’s consent to bring the prosecution. Perhaps they figured they’d lose this case the way they lost the Paul Hopkinson one. Either way, that seems to be a pointer toward not prosecuting, not towards finding some way of circumventing our real flag-burning law.

Justice Miller started off well. He recognised that free speech under the Bill of Rights means the bar for offensiveness is raised in protest situations, where protestors were trying to convey their opinions, so the public have to tolerate a higher level of disturbance than is usually the case. He rightly noted the Brooker case, and its implication that you can’t characterise conduct as offensive if this would overstep the mark of reasonable limits that are demonstrably justified in a free and democratic society.

He even accept that:

Because the protestors were expressing genuine political opinions, a high value must be attached to their freedom of expession in this case.

Right on all counts.

But applying the law to the facts, I think Justice Miller dropped the ball.

He said some people might object to the theme of the protest (a banner said “conscientious objectors – the real war heroes”) as “a protest at the very idea of commemorating those who died while on active service.” But Valerie Morse didn’t carry any banners. Even more fundamentally, this reasoning overlooks the first principle of serious free speech jurisprudence: a towering suspicion of any restriction based on disagreement with the message or viewpoint being conveyed.

Worse than that – the judge regarded the symbolic nature of the protest as an aggravating factor, because the flag was so dear to the hearts of the attendees. Um, that was the point of the protest.

Miller J also said Morse “associated herself” with the noise of the guy blowing the trumpet. But she wasn’t charged with being a party to his offense. In fact, he wasn’t even charged with offensive behaviour – a charge that might have had more merit. It’s troubling to see a criminal conviction turning on this sort of flimsy taint-by-association reasoning.

Finally, Miller J emphasised that some people in attendance were outraged by her conduct, and that their views “were neither surprising nor unreasonable.” Of course, that’s true. But the question isn’t whether it was  reasonable for the people to be offended. The question was whether it was a demonstrably justifiable restriction on Morse’s free speech rights to be arrested, convicted, and fined $500 for burning a flag, without endangering anyone’s safety, as part of a political protest during the speech of a former defence official who was across the road –  in a prosecution that was contrived to circumvent the protections in the law specifically designed to address flag-burning.

I think the answer is plainly no. Not only did both judges disagree with me, they thought the offence was a “serious one of its type”. Good grief.

Her case is going to the Court of Appeal. Let me say again, I hope she fares better on appeal.

Topics: NZ Bill of Rights Act, Protest speech | 4 Comments »

4 Responses to “A burning issue”

  1. ChrisBishop Says:
    July 26th, 2008 at 8:33 pm

    With you on this one – poor form. Is a copy of the judgment online?

    One hopes the CA ends this nonsense.

    Who’s acting for Morse?

  2. Graeme Edgeler Says:
    July 27th, 2008 at 1:36 pm

    Chris – at the High Court Mark Lillico; at the Court of Appeal Antony Shaw.

  3. Andrew Geddis Says:
    July 28th, 2008 at 10:25 am

    Even if the C. of A. doesn’t overturn, I could see this going to the Supreme Court. Miller J pays lip-service to the Brooker test (which, although laid down in the context of “disorderly” behaviour, is interchangeable for cases of “offensive” behaviour) without really recognising its basic importance – it’s no longer enough to show an observer was “annoyed”, or even “outraged”, by the political commentary/expression at issue.

  4. Graeme Edgeler Says:
    July 28th, 2008 at 11:20 pm

    Well at least this ain’t Peru:


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