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Why we should protect flag-burners

By Steven | May 12, 2011

This piece is in today’s DomPost, but they don’t seem to have put it up online:

I’m astonished by the reaction to the Supreme Court’s decision overturning Valerie Morse’s flag-burning conviction. “Anyone can burn our flag”, thunders the front page of the Dom Post, disapprovingly. It’ll make the police’s job harder, intones Radio NZ news. The decision is “ridiculous”, says an RSA official.

I was one of Valerie Morse’s lawyers, so I’ve thought a lot about her case. And these responses strike me as shallow and misleading.

One reaction I can respect, though, is from those (like other RSA spokespeople) who are appalled that anyone would think of burning a New Zealand flag at an Anzac Day dawn ceremony. There’s something sacred about the sacrifices of soldiers. Anzac day is a time for solemn reflection and commemoration. Any protester with half a soul – or any defender of free speech – should feel queasy in their gut about provocative protests like this.

But protesters are a determined breed. They care passionately about the issues they demonstrate about. Many have devoted their lives to the cause. For Valerie, and others, that cause is our country’s involvement in foreign conflicts. Their banner that day called on the government to pull our troops out of Afghanistan, East Timor and the Solomon Islands. They pointed up the irony that, while we were solemnly gathering to commemorate the war dead, the government was sending more soldiers to die overseas.

It is difficult to think of a more important political issue than whether we should involve ourselves in foreign conflicts. And it’s difficult to think of an important political issue that has received less debate and media attention.

Is it any wonder that protesters see the need to shock us out of our complacency? Remember, we’re talking about protesters who tend not to have the money to run big media campaigns. They don’t own newspapers. They don’t feel represented by the political parties. They tend to be regarded as radical. Journalists don’t go to them for quotes and stories.

So why listen to them at all? Why indeed? Why listen to those upstart suffragettes in the nineteenth century? The smelly hippies in the sixties who started drawing attention to environmental degradation? The handful of consumer activists pointing out that our cars were unsafe? The clutch of humourless harpies arguing for equal pay for women?

US law professor Cass Sunstein has written a series of terrific books exploring how ideas take hold in society. The evidence shows we have a strong tendency to conform to prevailing ideas. When those ideas are widespread, but flawed, this can have terrible consequences. We’re often in the most danger when we’re the most smugly sure of ourselves. But the good news is that society can be rattled out of narrow mindsets, and sometimes change direction altogether. All it takes is a handful of dissenting voices. They provide the opening for the rest of us to start considering different approaches. We should encourage dissent, he concludes, not punish it. Conformists benefit their own interests. Dissenters benefit society.

Of course, that doesn’t mean that every protester has magic access to the truth. Some are crackpots. The point is that it is vital for society to be constantly challenged by people who strongly believe that things should be done differently.

Valerie’s flag-burning ignited howls of outrage about her methods. But it also sparked one of the few debates we’ve had about our engagement in Afghanistan.*

What’s more, it drew a stinging rebuke from the Prime Minister and the leader of the opposition. I’m inclined to think that a dressing down like that is the right place for those seeking to enforce norms of decency in protests. We don’t need to use the criminal courts.

When protesters are brought before the courts, the New Zealand Bill of Rights Act is there to ensure that judges respect rights of free speech, and only restrict it when doing so can be “demonstrably justified in a free and democratic society”. Valerie’s case was about forcing the courts to acknowledge that the police and criminal law must give protesters, and others engaging in speech, more latitude.

This is hardly a radical idea. It is well established internationally that the right to free speech protects protesters and includes the right to shock, offend and disturb. As UK Court of Appeal judge Sir Stephen Sedley put it in a similar protest case: “Freedom to speak inoffensively isn’t worth having”.

There is surely no country on earth that treasures its flag and its troops more than the United States. But the US Supreme Court has held that speech rights include the right to burn the flag. More recently it had to consider the rights of the most vile and offensive protesters imaginable: the members of an extreme church who publicised their belief that war is God’s punishment for tolerance of homosexuality by protesting outside military funerals with signs like “Thank God for Dead Soldiers”.

The Supreme Court upheld their rights. It said the First Amendment serves to “protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Our Supreme Court has not gone so far. It has not said it will never be offensive behaviour to burn a flag. It has not stripped police of their powers to intervene in a protest when a breach of the peace is imminent (though the thrust of the decision suggests police should usually restrain crowd members from taking unreasonable retaliatory action, not arrest the protesters).

The court unanimously laid down a principle that we can’t punish behaviour as offensive unless it’s disturbing public order. And when protesters are exercising speech rights, we must be extra tolerant of their views and their methods – even if we despise both – before we can call their conduct criminal.

That seems right to me. That’s what freedom looks like.

*In the comments thread, Russell Brown disagrees that the flag-burning “sparked one of the few debates we’ve had about our engagement in Afghanistan”. I’ve gone back and looked at my files, and he’s got a point. As my op-ed piece accepts, most of the response was about whether it was appropriate to burn a flag. But it did go further than that. In the course of the coverage, the protesters’ message about involvement in foreign military conflicts was fairly widely reported. Three editorials discussing her actions outlined the reasons for them. Several letters to editor were published that addressed the militarism debate (“Our robust independent foreign policy ensures that we make up our own mind on conflict in the world today and I think Morse needs to give New Zealand greater credit for that”, said one. Another suggested that the way we honour our “heroes” sometimes obscures the atrocities that countries commit in wars). I’ve reproduced one of Valerie’s letters below. In addition, Marion Hobbs, who attended the ceremony on behalf of the government, defended our involvement in overseas conflicts as peacekeeping and said Morse must be “crazy” to oppose it. There was also debate about whether ANZAC day was, as Morse contends, a “glorification of war.” But I don’t have any evidence that the debate focussed specifically on Afghanistan.

Topics: Protest speech | 14 Comments »

14 Responses to “Why we should protect flag-burners”

  1. Russell Brown Says:
    May 12th, 2011 at 1:59 pm

    The court unanimously laid down a principle that we can’t punish behaviour as offensive unless it’s disturbing public order.

    I think that was absolutely the right thing for the court to do.

    But I don’t agree at all that Morse’s unpleasant, insensitive choice of venue sparked a debate about our engagement in Afghanistan.

    It didn’t. As usual, it simply sparked a debate about Valerie Morse.

  2. Steven Says:
    May 12th, 2011 at 2:14 pm

    I agree that most of the debate was about her.

    But as well as slagging the flag-burning, the government responded by explaining our “peacekeeping” role in Afghanistan. There was some talkback discussion about the foreign policy issues. And the DomPost published this from Valerie:

    The Peace Action Wellington protest on Anzac Day was aimed at neither veterans nor monuments. We chose the dawn service because we felt we could not blindly and uncritically accept that Anzac Day is about “Lest we forget” without recognising the hypocrisy of a government engaged in 18 military missions.

    Defence Minister Phil Goff and Afghan President Hamid Karzai met only last week. Karzai is happy to applaud New Zealand’s work — he is benefiting from its presence. This war has gone on for six years and New Zealand has been there since the beginning with SAS troops, navy frigates and Orion aircraft.

    The NZ Defence Force is not some neutral force. It comprises armed soldiers endorsing US President George W Bush’s “war on terror”.

    Mr Goff and Prime Minister Helen Clark call it peacekeeping, but whose peace are we keeping and why? So far, this war has cost about 30,000 civilian lives. Lest we forget, militaries exist only to wage war. If we are genuinely interested in making sure we never again have war dead, we must stop engaging in war.

    VALERIE MORSE

  3. Steven Says:
    May 12th, 2011 at 2:24 pm

    Oh, and given Jon Stephenson’s reporting alleging NZ complicity with abuses in Afghanistan, I think we should be prepared to give Valerie some credit for opposing it early on, even if we dislike her methods. Flag-burning was a measure of her desperation in trying to generate some debate.

  4. Merv Says:
    May 12th, 2011 at 4:48 pm

    I think, Valerie’s actions were crass, offensive and just plain dumb. However, I agree, that whilst it bordered on “disorderly behaviour” — given the solemnity of the occasion — she shouldn’t have been charged; let alone, convicted.

    All very well, having strong beliefs, but not at the expense of jamming them down people’s throats. She did act like a fishmonger’s wife, badgering her wares at the market.
    Coarse and very loud. Indifferent to others’ feelings and sensitivities. Really, she needs to grow up.

  5. jrg Says:
    May 12th, 2011 at 9:26 pm

    —–“to intervene in a protest when a breach of the peace is imminent”— Question How can you say that a breach of the peace is imminent,when in fact no breach has occured. The definition of imminent needs some-how to be tightened up.The current situation allows the person calling the shots too much latitude in shutting down a protest because of preconcevied ideas on the topic.(top cop in London at the royal wedding)

  6. Steven Says:
    May 13th, 2011 at 9:52 am

    jrg:
    Requiring that the breach be imminent IS tightening it up. In a recent UK case, police turned back a busfull of protesters miles from the protest site because some of them might get unruly. The courts said that was unlawful. I’m sure you’re right that there will be tough calls. But if the crowd starts throwing things, issuing threats, or advancing on the protesters, I think it may well be fair to say that a breach of the peace is imminent. In the first instance, they ought to be protecting the protesters from the unlawful reaction of the crowd, but if that becomes impossible, as a last resort, police have the power to aske the protesters to move and if they refuse, to arrest them to move them on.

  7. Guy Says:
    May 13th, 2011 at 1:27 pm

    I agree with the thrust of the judgment, but Im struggling a little bit with the idea that behaviour is only offensive behaviour if it is disturbing public order. I may be wrong, but doesn’t that mean that liability for behaviour will totally depend on the way in which people react to it as opposed to looking at the nature of the behaviour itself. So if something minorly disturbing elicits a disproportionate reaction from the people who happen to be in the vicinity, there is offensive behaviour. Whereas, if some highly offensive form of behaviour happens to not elicit a response from those who witness it, it is deemed unoffensive?

  8. Steven Says:
    May 13th, 2011 at 1:40 pm

    It’s an excellent point, Guy. The threshold for disturbing public order isn’t entirely clear, and it seems the judges may even disagree among themselves about how might apply in practice. But it does seem to put a premium on adverse crowd reaction, as Whale Oil has colourfully pointed out. If I disagree with a flag-burner, the incentive is for me to punch her, thereby creating a disturbance to public order, which can be sheeted home to her: her behaviour is now offensive.

    I don’t think this works though. Most of the judges indicate that the crowd are required to tolerate messages and methods they don’t like, commensurate with the significance of those messages. As I read it, this means that if someone reacts unreasonably or disproportionately, that cannot turn behaviour that otherwise could not be treated as offensive into behaviour that is criminally offensive.

    What about highly offensive speech that doesn’t disrupt public order? In general, it must follow from the court’s ruling that this is not a crime. But a couple of things about that. The threshold for disrupting public order may be fairly low. At least two judges contemplate disruptions even when they are not accompanied by manifest disorder, such as when some thugs behave offensively in the presence of children who are very unlikely to retaliate.

    Second, where there’s no significant speech element – ie no real message sought to be conveyed, as there was in Morse’s political protest – it is likely that judges will more readily find that the offensiveness both disturbs public order and is more than those around should be required to tolerate.

  9. metanarratives Says:
    May 13th, 2011 at 3:57 pm

    Steven, what do you think will be the likely impact of the court’s decision in this case on police behaviour?

    I don’t have high hopes. Empirical evidence tends to suggest the efficacy of legalism (changes in the legislation, changes in the law brought about in celebrated cases handed down from higher courts) on police decision making is often non-existent or variable at best.

  10. Steven Says:
    May 13th, 2011 at 4:12 pm

    Another very good question. Like you (and for the same reasons), I tend to be a bit pessimistic. But the optimist in me notes that this was a unanimous decision in which the judges laid down something of a bright-line rule, and it’s the second case in a row (after Brooker) that they’ve emphasised the importance of the BORA when dealing with protesters. I hope that it may have some effect on the ground.

  11. Andrew Geddis Says:
    May 13th, 2011 at 10:44 pm

    Steven,

    “If I disagree with a flag-burner, the incentive is for me to punch her, thereby creating a disturbance to public order, which can be sheeted home to her: her behaviour is now offensive.”

    At the cost, of course, of your having committed an assault (at the least). So it would be an odd person to reason “I’ll teach those protesters a lesson! I’ll make them liable to a fine of up to $1000 … by opening myself up to a jail term of up to 6 months or a fine not exceeding $4,000.” But then again, you mentioned Cameron Slater’s nom-de-web, so I guess oddness is to be expected …

    “As I read it, this means that if someone reacts unreasonably or disproportionately, that cannot turn behaviour that otherwise could not be treated as offensive into behaviour that is criminally offensive.”

    Yes – there is one of those odd subjective-objective tests invoked here. So the court has to decide if the response (or potential response) of the actual people who actually witnessed the behaviour was appropriate given the demands of tolerance, etc expected of citizens in a democratic society. So, it isn’t enough to say “the onlookers got antsy and trouble looked like breaking out” … you have to get a judge to agree that the onlookers were justified in getting antsy and threatening trouble in response to the message.

    “What about highly offensive speech that doesn’t disrupt public order? In general, it must follow from the court’s ruling that this is not a crime.”

    Well – the judges do talk about behaviour that has a potential to disrupt public order (even if has not yet done so). Indeed, this has to be covered, otherwise “offensive” behaviour just collapses into “disorderly” behaviour. So, just as an actual onlooker may unjustifiably react to some protester’s behavour (i.e. the subjective response of threatening disorder may not be objectively justified … or, not seen as “correct” by a judge given the requirements of tolerance, etc in a democratic society), an actual onlooker may fail to react to a protester’s behaviour in a justifiable fashion (i.e. they may not threaten disorder, even though the behaviour objectively invited it … or, a judge thinks “this sort of behaviour SHOULD HAVE caused onlookers to threaten disorder”.) As such, the test has lifted from “did the behaviour cause a great deal of internal mental upset (offence)?” to “did the behaviour cause mental upset (offence) of a kind/to an extent that a reasonable onlooker imbued with the sorts of tolerant outlook expected of citizens in a robust democracy still could be expected to snap and react in a way that threatens disorder (even if, in practice, they didn’t do so for some reason or another)?”

    “Second, where there’s no significant speech element – ie no real message sought to be conveyed, as there was in Morse’s political protest – it is likely that judges will more readily find that the offensiveness both disturbs public order and is more than those around should be required to tolerate.”

    I’m wondering about this. In a case where there is no NZBORA issue – the offensive behaviour has no expressive component to it – or where the NZBORA issue is trivial – any expressive component is of no “value” – then why isn’t “experiencing significant mental upset (offence) as the result of another’s actions in the public sphere” enough of a “disruption of my use of the public sphere” to qualify as offensive behaviour? In other words, is Morse/Brooker good for NZBORA-implicated cases, whilst non-NZBORA-implicated cases can still continue along the lines of previous case law?

  12. Steve Parkes Says:
    May 14th, 2011 at 1:12 am

    I was pleased to read the result of this case. I had no internet access at the time, but was trying to think of some pithy line for Twitter. Something along the lines: “As long as I live in a country where flag burning is legal, I’ll never need to burn the flag”, but I’ve never quite got the wording right.

    Steven: ” “Anyone can burn our flag”, thunders the front page of the Dom Post, disapprovingly.”

    Oh I don’t know, the article didn’t seem particularly disapproving or biased, if I recall it correctly. The headline was the usual attention grabbing that papers do. It was just paraphrasing Bill Hodge, at that.

  13. Steven Says:
    May 15th, 2011 at 1:39 pm

    Andrew:
    I’m inclined to think that offensive behaviour is now a subset of disorderly behaviour. Surely the public order element is now the same for both (there couldn’t be no public order element, or a lower public order threshold, for disorderly behaviour, could there? On your reading, some offensive behaviour that threatens public order may be offensive but not disorderly. Can you think of an example?)

    Re: what happens when there’s no BORA issue. I see where you’re coming from, but I’m not sure about it. It does receive some support from a UK case called Connolly, I think, where the court found that the proper interpretation of the section may vary depending on whether the case is a rights-engaging one.

    Isn’t the problem that the judges seem to have relied at least in part on statutory context (the fact that offensive behaviour is listed under the part dealing with “public order offences”)? Doesn’t that suggest that public order disturbance will always be required? (I’m merely suggesting that as a matter or practice it will be more readily found to exist where there’s no real speech issue). In any event, the “tolerance” aspect will not be present.

  14. Andrew Geddis Says:
    May 16th, 2011 at 9:01 am

    “On your reading, some offensive behaviour that threatens public order may be offensive but not disorderly. Can you think of an example?”

    Yes. Mr Brooker, instead of protesting outside a policewoman’s house, follows a woman home after she has had an abortion and sets up on the footpath outside her home with a protest sign showing an aborted fetus and starts singing (in a normal voice) a song about the baby-killer who lives inside.

    Can’t be “disorderly behaviour” in and of itself (see Brooker). But does it have the propensity to disrupt public order due to the level of offence/upset caused to the target of the protest? Seems a strongish argument that at some point the target may snap and come racing out to confront the protestor – or that her neighbours may become so incensed they’ll do so on her part. And fair enough, to? Dunno … ask a judge!

    “Isn’t the problem that the judges seem to have relied at least in part on statutory context (the fact that offensive behaviour is listed under the part dealing with “public order offences”)? Doesn’t that suggest that public order disturbance will always be required?”

    True. But I suspect in non-NZBORA situations you’ll find judges saying things like “the behaviour of the accused created a level of offence in a reasonable onlooker that likely would have lead to a breach of public order, had not the police intervened to arrest the accused … guilty!” Which in practice isn’t that different to the pre-Brooker tests, really.

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