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Bare reasoning

By Steven | March 12, 2010

In Lowe v New Zealand Police, Clifford J rightly overturns Nick Lowe’s conviction for offensive behaviour for cycling in the nude. It was on World Nude Bike Day, but Mr Lowe, “a committed cyclist and naturist”, doesn’t need that incentive to bike about naked. For example, he competes in the Coast to Coast without clothes (except, commendably, a helmet).

A woman had seen him riding along a relatively quiet rural road in Upper Hutt and complained, saying she was “fairly disgusted”,  though she admitted she hadn’t even seen his tackle. The judge said that this didn’t satisfy the test of behaviour liable to cause substantial offence, or capable “of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it”. (Note that this doesn’t close the door to an offensive behaviour prosecution of someone going naked in different circumstances… such as walking along a suburban street.)

The bit I take exception to is where the judge apparently decides that there is no element of freedom of expression in his behaviour (which would have meant that the judge would have to take it into account in interpreting and applying the offence). The only thing that makes the judge pause before reaching this conclusion is that it was World Nude Bike Day, and “Mr Lowe’s behaviour could possibly be seen as an expression of opinion in support”. He rejects this, as Mr Lowe does not seem to have regarded it as especially significant.

I hope the problem here is obvious: it’s not necessary for Mr Lowe’s conduct to be linked to World Nude Bike Day for it to involve a speech issue. As the judge says, Mr Lowe is “a committed naturist” whose “personal view is that it is appropriate to be nude in a wide range of situations where others would consider that such behaviour was, at best, inappropriate.” Nudity, for Mr Lowe, is itself an element of self-expression. It is also itself a political statement – a message about how society ought to be ordered. This plainly falls within the ambit of the Bill of Rights’ protection of free speech.

I’m not saying that all conduct amounts to speech. I’m not saying that his conduct falls at the core of the right to freedom of speech. I’m not saying that limitations on his speech-conduct can never be justified. But I am saying that this is plainly a speech issue, and it’s rather dismaying to see a High Court judge failing to recognise it as such.

Topics: Free speech theory, NZ Bill of Rights Act, Protest speech | 32 Comments »

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