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Pagani sides with the wowsers

By Steven | April 20, 2011

John Pagani reckons the BSA got it right about Aramoana, and I got it wrong. He thinks it was a “balanced call”, made by the experts we’ve appointed to administer standards that, after all, include good taste and decency and children’s interests. For him, I’m a “Bill of Rights fundamentalist” who treats this as an “entirely legal question” and insists that free speech must trump sensible policing of social norms on early evening television. He helpfully points out that the right to freedom of expression is subject to reasonable limitations such as can be demonstrably justified in a free and democratic society, suggesting he doesn’t read my blog much, since I bang on about that all the time.

Right. The battle is joined. Let me now explain, as condescendingly as I can, why he’s wrong. (Though I don’t really think he’s a wowser).

I’ll start by granting that he makes some fair points. The BSA are appointed for their expertise on matters of broadcasting standards. They should be given room to do that without the law nitpicking at their performance all the time. The Bill of Rights doesn’t overrule the standards. They have to give some meaning to “good taste and decency” and “children’s interests”. For what it’s worth, I agree that those limitations on broadcasters’ speech, are in general, reasonable.

But none of that makes any difference. Pagani talks as if the BSA is not subject to administrative law. They are. Let me put part of my argument in purely administrative law terms, without any mention of the Bill of Rights. Here it is: the majority manage to uphold a complaint against a TV programme, saying they’re looking at context, and setting out the contextual factors they have considered: but they completely overlook the most glaring and telling contextual factors that count in TVNZ’s favour. Here are the factors they considered relevant:

— the programme was unclassified (ie not G or PG or AO)

— it contained two warnings

— it had an adult target audience

That’s it. They also note that the programme “revisited a significant historical event”.

And here’s what they missed out from their list of contextual factors:

— the word was not used in a sexual or abusive way

— the word was recalled as part of a dialogue about what actually happened in an extremely emotional moment

— it was among the last words spoken by David Gray

— the word was spoken as part of a thoughtful recollection by a police officer who had shot Gray, and who was clearly diffident about using it

— there was nothing at all gratuious about the use of the word

Those are plainly – even by the BSA’s own repeated affirmations of the importance of context – relevant considerations. TVNZ had put them before the BSA. Pagani would not usually excuse a public body for failing to take into account manifestly relevant considerations. Those considerations tell strongly against their conclusion.

But perhaps I’m being unfair. Perhaps it is supposed to be obvious that the majority took these factors into account. They are referred to earlier in the decision when the parties’ arguments are recounted, and later, when the Chair issues his dissent. It defies belief that they weren’t aware of them.  So perhaps they decided they didn’t need to list those points in the place where they always – always – set out the list of factors relevant to context. Still, that’s very bad administrative practice, and denies us the opportunity to understand how they would have grappled with those considerations. Because… try adding those factors I’ve listed to the three they listed – all of which tell against an uphold here – and then try to marshall a sensible-sounding conclusion that “even so, there’s a breach”.

I’d also argue that this decision is inconsistent with other BSA decisions listed in my first post, as well as a vast range of others that insist on the central importance of whether the use is gratuitous. It also draws on research in a questionable way (I think there’s a difference between surveys about the word “fuck” and the connotations they are likely to provoke, and the way the word “fucking” was used here.)

And that’s without the Bill of Rights. Don’t worry, I haven’t forgotten it. In essence, what this requires of decision-makers is a due sense of proportion when restricting protected rights. That’s the heart of it. In fact, the judges often summarise it as “proportionality”. I think the BSA has, to borrow from Tipping J, used a sledgehammer to crack a nut. What proportionality requires is a balancing of two things: how important the particular speech is, and how important the particular restriction is. Here’s Tipping J again:

The more value to society the information imparted or the type of expression in question may possess, the heavier will be the task of showing that the limitation is reasonable and justified.

In the UK, it is now established that this is, indeed, a question of law. That is, it’s something the BSA is capable of getting wrong, and if they do, the courts have power to fix it. (For all that, I suspect that judges will be likely to pay some respect to the assessments of expert decision-makers like the BSA, particularly where they spell out a sensible weighing process).

And once again, I’m happy to say that this balance is still generally best left to the BSA. They’re the experts at weighing the interests involved. They have even taken some steps recently toward actually following this weighing process in their decisions, instead of just assuring us in a piece of boilerplate at the end that their decisions are Bill of Rights compliant.

My point: the balance in this case is a no-brainer. Almost all the factors tell against punishing this speech. The majority of the BSA recognise that that the speech is “high value”. It’s a serious documentary about an important historical event. So what’s the harm to some equally important social interest on the other side of the equation? Harm that’s damaging enough to society to warrant penalising the important speech? Well, actually, as I noted, the BSA never assesses the psychological evidence about what harm fleeting non-abusive swearing might do. (None). To be fair, TVNZ didn’t put it before them.

Instead, they looked at how popular the words were, and decided they were unpopular to many – perhaps most – viewers, based on their very general surveys. Okay, so it’s a bit mischievous of me to say they treated this like a popularity contest. They were plugging into some sensible research they’d conducted to get a bead on the social norms they’re required to enforce. (In fact, they plopped this part of their reasoning under the “Children’s interests” banner, which seems weird. How does the fact that a proportion of adults think the language is inappropriate prove that it’s harmful to children?). But there is a point here. When speech is contributing to an important public conversation, thoughtful judges and academics around the world say that we should be very slow to penalise it on the grounds of its offensiveness. Leeway has to be allowed for the way people choose to speak. That surely goes double for a programming exploring the events on the day of one of New Zealand’s biggest criminal tragedies.

So: on one side of the balance – high value speech. On the other – two brief uses of a fairly common swear-word which harms children and society by….? How? They don’t say, except some bromide about children being vulnerable and adults expecting cleaner language at that hour. Now, that might normally be enough. But because this is high-value speech, they need a more compelling justification. That’s the missing step in their reasoning. I think it’s a legal error. And I think if they’d asked themselves the right question, they couldn’t have reached the decision they did. It’s just not … proportionate.

The BSA majority’s best argument, I think, is that requiring the broadcasters to bleep the word or broadcast later wouldn’t much hamper its speech. I guess the thinking is that even if it’s high-value speech, the value isn’t diminished much by this particular change. The restriction is minimal.

Like I say, that comes closest to working for me. But it still doesn’t get there. For one thing, these words are significant in context. For another, there’s no evidence that children are harmed by exposure to them in this way. For another, the decision surely means the F-word can never be used in early evening TV, no matter what the context. For another, it seems to require broadcasters of serious current affairs programmes to wield the censorial scalpal even to language that’s central to the events they’re focusing on.

I doubt I’ve convinced John Pagani. But I hope TVNZ can convince a court in their appeal.

Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | No Comments »


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