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A thought

By Steven | September 5, 2011

It’s worth pausing to reflect that Valerie Morse went to the lengths of burning a flag at an Anzac Day dawn ceremony to shake us out of our complacency and start questioning our involvement in foreign conflicts (the banner she was trying to draw attention to specifically mentioned Afghanistan).

Nicky Hager’s book suggests that we would have done well to take heed. Instead, her reward was a prosecution for offensive behaviour.

Topics: General | 21 Comments »

21 Responses to “A thought”

  1. Russell Brown Says:
    September 5th, 2011 at 6:39 pm

    I know we’ll never agree on this Steven, but doesn’t that simply show that Morse’s action was a failure?

    She drew attention only to herself. She offered gratuitous offence to men who were remembering their dead.

    Her excuse that the action was justified because “it is clear the significance has changed over the past 20 years … An agenda of “national identity” creation underlies the event” shows a remarkable ignorance of New Zealand history. She might have done well to read Keith Sinclair’s writing about Anzac Day.

    And the banner she was supposedly trying to draw attention to did not only mention Afghanistan.

    It read: “Lest we forget – already forgotten: Afghanistan, East Timor and Solomon Islands”.

    Two of those three are named in Nicky’s book as examples of genuine peacekeeping (not “so-called” peacekeeping, as Morse wrote in The Listener this year), and the kind of work New Zealand soldiers *should* be doing.

    I don’t think they are really saying the same thing at all. And if Morse is misunderstood it’s because what she says is incoherent.

  2. Steven Says:
    September 5th, 2011 at 7:12 pm

    Yes, it didn’t really work. And yes, it generated more heat than light, so to speak. But it was a measure of her desperation in trying to get Afghanistan onto the public agenda, and spark some debate about our involvement there. Nicky’s book shows that there were some real issues to be debated. You might not like it because you can’t see past the offensiveness of her vehicle, but she’d hit on something important. I would have hoped you might grant her that now.

    True, she objected to national identity creation too (though that wasn’t the thrust of her protest). Whatever our history, it is surely unarguable that in modern times our Anzac heritage is part of our self-identity, and the commemoration plays into that. We could choose to have national days of remembrance to honour a lot of people who have sacrificed much for their country, or achieved great breakthroughs, and we could hold them up as symbols of our national character. But we don’t.

    I don’t know how much Valerie knows about the history of Anzac day, and I suspect you don’t either. But someone who is steeped in that history might still object to the way we deal with it today. Just because that doesn’t accord with your views about what’s justified doesn’t make her wrong.

    You’re right that Valerie’s banner also referred to Solomon Islands and East Timor. And that Nicky’s book generally supports a peace-keeping role in the Pacific. But he writes very little about East Timor and the Solomon Islands. It’s outside the scope of his book. What he does say could be seen to raise some questions about our activities. It’s where our signals intelligence officers learned their trade, beginning the sort of technologically targeted killings that seem chilling in Afghanistan. He suggests that our troops in the Solomons were bullied by the Aussies. I suspect there’s interesting material that has never emerged about our involvement in those conflicts too.

    I doubt that would lead me, personally, to conclude that we shouldn’t have been involved in those places. But Valerie is a pacificist. As I understand it, she opposes military intervention anywhere. She thinks they do more harm than good. I don’t think that’s incoherent. At the least, I would hope that we would all agree that there’s room for much more information and debate about our involvement in such conflicts… and that’s a concern that carries across all three conflicts.

  3. Andrew Geddis Says:
    September 6th, 2011 at 8:34 am

    “She offered gratuitous offence to men who were remembering their dead.”

    Not entirely sure, but there may have been a woman in the ANZAC Day crowd. And I hear they even let women join the armed services these days … .

  4. Andrew Geddis Says:
    September 6th, 2011 at 8:42 am

    Snarkiness aside … aren’t there 2 points here?

    (1) Was Valarie Morse’s protest an effective form of protest, in that it was one which really caused (or was likely to cause) people to examine NZ’s role in Afghanistan (and elsewhere)?

    (2) Should Valarie Morse’s protest be treated as a criminal act, resulting in her arrest (thus silencing her protest) and imposition of a conviction and fine?

    Sounds like you’re both agreed on (1). But what about (2)? After all, the freedom to protest isn’t just the freedom to undertake successful/efficacious protests … is it? Or does the fact she was “offer[ing] gratuitous offence” mean that any “protest” aspect to her actions are overtaken by their bad consequences?

    [BTW: the answer to (2) is still up in the air. All the NZ Supreme Court said was that her original trial didn’t ask the right questions when convicting her … it didn’t say that her protest was lawful. So what do we think?]

  5. Steven Says:
    September 6th, 2011 at 10:52 am

    Re (1): in fact, as discussed before on this blog, the protest did trigger some debate about our involvement in foreign conflicts. But I have to concede that it wasn’t much, and that it was overwhelmed by the debate about whether it was appropriate to burn the flag.

    Re (2): I’m coming from a philosophical place that says it’s never appropriate to criminalise the actions of people protesting in good faith when the only harm is offence to others. (And I’d dispute Russell’s suggestion that the offence offered here was “gratuitous”).

    Re: Whether she broke the law as explained by the Supreme Court on appeal: reading the tealeaves, I think it’s pretty clear that the Chief Justice would say no (it wasn’t offensive in the way she defines the word); McGrath J would probably say yes (though I would have liked a shot at persuading him that any evidence of disorder was extremely sparse and speculative), Blanchard J would probably say no (he says the audience is supposed to take a “balanced, rights-sensitive view”); I like to think Tipping J would lean toward no too (“those affected are required to be appropriately tolerant of the rights of others”); and I rather suspect Anderson J’s description of the right approach, where he sets the threshold pretty low, would lead him to say yes.

    For me, there was no real evidence of any likely threat to public order, and the bulk of authority (and policy, and good sense) suggests that we ought to tolerate good faith protest on a topic as important as this, so the case fails both of the Supreme Court’s hurdles.

  6. Russell Brown Says:
    September 6th, 2011 at 11:09 am

    2) Should Valarie Morse’s protest be treated as a criminal act, resulting in her arrest (thus silencing her protest) and imposition of a conviction and fine?
    Sounds like you’re both agreed on (1). But what about (2)?

    I think Morse was entitled to her speech and that her only penalty should have been the scorn of those who disapproved.

  7. Russell Brown Says:
    September 6th, 2011 at 11:18 am

    You’re right that Valerie’s banner also referred to Solomon Islands and East Timor. And that Nicky’s book generally supports a peace-keeping role in the Pacific. But he writes very little about East Timor and the Solomon Islands. It’s outside the scope of his book.

    He is, however, strongly critical of the failure to protect the Timorese from Indonesian militias until the Americans gave the signal. Morse was saying that New Zealand and Australia should never have protected them at all. I just don’t think they were saying the same thing or even bore comparison.

    But like I said, we’re never going to agree on this one.

  8. Andrew Geddis Says:
    September 6th, 2011 at 12:02 pm

    Steven,

    Of course, one of the reasons why Ms Morse’s particular act may not (but we’ll never know for sure) have been “offensive” as per the Supreme Court’s test is that the Police moved in so quickly … the audience hardly had a chance to see what was happening, let alone begin to respond. But what if the Police had stood back and allowed the flag to burn, whereupon the crowd begins to respond angrily? Would the Police have been justified in effecting an arrest at that point, or been required to protect Ms Morse from any possible crowd response? Or perhaps they could have acted to prevent a “breach of the peace”, even if no criminal act has taken place? But surely the same restrictions apply to using the breach of the peace power as apply to a general power of arrest?

    The answer to all of this, as you and I know, depends on whether the courts think that a crowd OUGHT to put up with this sort of offensive act without responding in a disorderly manner (irrespective of whether they actually DO respond). Which brings us back to the underlying question … even if Ms Morse’s purpose was to alert us to the problems with our military adventures overseas, is an ANZAC Day crowd required to tolerate her chosen method of doing so irrespective of the feelings it may generate within them?

  9. Steven Says:
    September 6th, 2011 at 12:20 pm

    Fortunately for the world, I have an answer to this. I can explain how the police can exercise their various powers in a manner that keeps the peace, and is proportionate.

    Scenario: Protester does something that may make crowd upset and angry.

    Step 1: Don’t immediately arrest the protester.

    Step 2: Observe the crowd. Are they putting up with it? Or just heckling? If so, no action is needed. Repeat Step 2 as necessary.

    Step 3: If some people in the crowd are taking action – making threats, throwing things, jostling the protesters: warn those people to stop doing it. A breach of the peace is imminent. The police have powers to move them along without charge, or arrest for disorderly behaviour, making threats, obstructing police.

    Step 4: If lots of people in the crowd are getting unruly, so that it’s not feasible to deal with them, then ask the protesters to stop or move on so the breach of peace can be avoided.

    Step 5: If the protesters do not comply with this request, the police can use their powers to move the protesters along to avoid the breach of peace – without charging them . Obstruction charges are available then too if necessary.

    Step 6: after step 5, the police should also try to deal with those in the crowd who have reacted unlawfully.

    Now, I realise that things can boil over quickly. We have to cut the police slack in the way they assess and handle the situation. But this sort of escalated response should be their usual and preferred reaction where possible. That way, the use of their powers is a proportionate restriction on the protesters’ rights.

    However, I don’t see any evidence that this is the police’s usual and preferred reaction. In Morse, they failed at Step 1.

  10. Andrew Geddis Says:
    September 6th, 2011 at 1:19 pm

    Steven,

    Except, of course, at point 2 you could well have a number of people shouting at the protestors in the midst of what is a solemn civic ceremony, thereby distracting/interfering with other persons who have come to pay their respects/participate in that event. Isn’t that enough of an interference with their purpose for being in the public space to constitute “disorder”, thereby rendering the flag burning activity “offensive”? Doesn’t that then rest on a judgment as to whether the people shouting at the flag burners were justified in doing so (ie their tolerance had appropriately run out)?

    Also, how would your approach work in the case of a Fred Phelps like protest? Wouldn’t having to walk past “Your Son Died ‘Cause God Hates Fags” signs to get to his funeral in and of itself sufficiently interfere with public use of a space so as to qualify as “offensive behaviour”, whether or not you respond physically? Or, what about a group of large, tatooed skinheads turning up to a Chinese community picnic with signs saying “NZ for NZers” and “This is White Mans Land” (they’re skinheads – their grammar sucks) and proceeding to chant their opposition to immigration policies. Does the fact the picnickers may be too scared to vocalise/express their feelings mean that the law is powerless to step in? It seems to me the Supreme Court was careful to say that these sorts of cases could still be “offensive behaviour” … meaning that perhaps the police don’t have to be quite so hands-off as you suggest?

  11. metanarratives Says:
    September 6th, 2011 at 1:24 pm

    “However, I don’t see any evidence that this is the police’s usual and preferred reaction. In Morse, they failed at Step 1.”

    Yes.

    Police deployed at protests (are typically members of the team policing unit), they aren’t deployed with black letter law books. They are deployed with batons, handcuffs and a can-do attitude. Generally, on the street, the Police make it up as they go along and then leave it to others to (hopefully) find justifications after the fact. There is a whole body of work that shows this. Reading the “law” (statutes, cases, directions) is an inadequate way to describe how the police do behave in practice. The law (at best) shows how the Police normatively ought to behave, not how they do behave.

  12. ross Says:
    September 6th, 2011 at 4:25 pm

    > Morse’s action was a failure?

    It depends how you define failure. Are the vast majority of our Olympic athletes failures because they don’t win medals? I wouldn’t have thought so.

    Valerie Morse is someone who has written about and protested at our involvement in wars. She is nothing else if not consistent. I admire her courage and commitment. I don’t think she’s misunderstood, but she certainly does get under the skin of some.

  13. ross Says:
    September 6th, 2011 at 4:29 pm

    A recent Listener article gives some context for Morse’s protest on Anzac Day.

    http://www.listener.co.nz/commentary/valerie-morse/

  14. Steven Says:
    September 7th, 2011 at 12:20 pm

    Andrew: the advantage of my “escalating response” approach is that it tries to avoid police making judgments about the reasonableness of crowd reaction.

    The disadvantage is that it presents some difficult cases, as you’ve noted.

    I suspect I can’t avoid a call being made by police and courts on what ought to be tolerated in some cases, but I’d hope those could be minimised. But I don’t think my approach flies in the face of the Supreme Court’s judgment.

    In your rowdy-crowd situation, I would say steps 3 or 4 apply. That means I’m saying that shouting at protesters isn’t enough to turn the protesters’ behaviour into criminal offensiveness. If the interference with the purpose of the occasion is coming from the responders, as I think your situation implies, then that can’t be sheeted home to the protesters. But much may depend on what you’re calling “distracting/interfering” by the protesters. If they’re doing that in some noisy or physical way, then disorderly behaviour seems to fit the bill. If it’s purely distraction through offence taken at their message, then it’s up to the crowd to tolerate it and the police should be quelling the crowd not the protesters if possible.

    I may have to concede that a protest may so extreme or provocative (akin to the sort of baiting that the US courts describe as “fighting words”) that resulting disorder may be pinned to the protesters. I’d expect that to be very rare, and I’d want to resist reaching that conclusion where possible.

    Do your other examples get there? I think we put up with God Hates Fags, though I can think of some situations where that sort of protest might be akin to fighting words.

    I’m not sure we have to put up with the skinheads on my analysis. The essence of their conduct is not offensiveness but intimidation. As you note, the Chief Justice and, I think, Blanchard J, touch on this as a species of public disorder sufficient to satisfy the offensiveness standard. Is it ironic that non-manifested disorder (eg fear) can contribute to offensiveness, but manifested disorder (physical retaliation) usually can’t? Maybe. But it doesn’t seem unprincipled to me.

    To be frank, I’m not sure whether this analysis really fits with the Supreme Court’s decision. I think it can be squeezed in.

  15. Andrew Geddis Says:
    September 7th, 2011 at 1:37 pm

    There’s a line of thinking about US Constitutional Law that if your theory cannot account for the S.Ct deciding Brown v Board of Education in the way it did, then the theory is flawed. I tend to see the Phelp’s example in the same way … if an approach to free speech results in saying “you just have to put up with this”, then I think there’s a problem with the approach.

    On the skinhead example – I agree the “intimidation” aspect means that it likely would be “disorderly”/”offensive” on the S.Ct’s analysis (certainly on Elias’). They would say that the internal feelings resulting from the protest are such that the picnickers are unable to carry out their purpose (having a fun family day in the park), thus making them likely to pack up and leave and so having some “public order” consequence. But I don’t see how that matters to you on your approach … why wouldn’t you just say to the picnickers “harden the fuck up”, as you would to those who get irate at seeing the flag burn? Is anger/offense controllable in a way that intimidation/fear is not? Do we demand citizens of a democratic society be broad minded and tolerant, but not courageous and unintimidated? Do small and physically unimpressive people have a greater right to protest than do large and scary looking ones? After all, the former are easier to yell and shout at (which isn’t a reaction that can justify police intervention) while the latter are intimidating and may cause withdrawal (which is a reaction that the police can do something about).

    Or put it this way – if you had an old soldier commemorating his comrades at a cenotaph and 10 anti-war folks happen by, stop, and begin shouting anti-war slogans at him, this may count as “offensive”/”disorderly” conduct (given the intimidation involved). But if 10 old soldiers are commemorating their comrades at a cenotaph and a sole anti-war protestor turns up to burn a NZ flag during their ceremony, any reaction that the old soldiers display is not grounds for deeming the protest behaviour “offensive”/”disorderly”. This seems odd to me.

  16. Steven Says:
    September 7th, 2011 at 3:38 pm

    There’s a line of thinking that if you have to reach for implausible scenarios to support your argument, then the argument is flawed. (If there isn’t a line of thinking like that, then there should be.)

    Ten antiwar folks shouting at an old soldier quietly commemorating at the cenotaph? I mean, really.

    I can’t picture it myself. If it did happen, I find it hard to believe it would be done in an intimidating way. If it was, then it’s disorderly/offensive , on the Chief Justice’s reasoning (or the offence of intimidation), like the picnic example.

    And your solution is… treat both of the situations you outline as offensive? Doesn’t that seem more odd?

    Do we demand citizens of a democratic society be broad minded and tolerant, but not courageous and unintimidated?

    Yes.

    I cringe at the Phelps example. But I cringe more at the prospect of giving police and judges the discretion to criminalise particular ideas they think are offensive. Besides, Phelps is obviously another far-fetched example that could never happen in real life…

    The Supreme Court has insisted on prerequisites of (a) disturbance to public order and (b) robust tolerance of others’ ideas. I think that together these tell against attributing audience reactions to the protesters except in extreme situations.

  17. Andrew Geddis Says:
    September 7th, 2011 at 3:46 pm

    But, of course, as the boundaries of “acceptable” versus “unacceptable” protest get redrawn, the previously “far-fetched” becomes the new hard case.

    So, in 1968 do you think anyone would consider we’d one day have a case about whether burning a freakin’ flag at ANZAC Day is or is not lawful? I mean … c’mon! A NZ flag! At ANZAC Day!! And the reason Phelps is “far fetched” in NZ is because it so OBVIOUSLY is beyond what the law would (and still will) allow that not even the most nutty “Christian” group would try it on here … but a few more years down the US free speech avenue and who knows?

    And you know what, Steven? That day will be all because of YOU. Yes, that’s right. YOU!

  18. Steven Says:
    September 7th, 2011 at 4:02 pm

    Aw shucks. But there are so many people I have to thank: my lovely partner, my mum, supportive colleagues like that guy Geddis in Otago… Valerie Morse, who made this all possible.

    My Phelps point was supposed to be ironic and self-deprecating. Boy did that fall flat.

    So, fair enough. People have limitless ways of being offensive (though I have say that ordinarily they don’t use very much imagination). But I think we need to design our rules with a normal protest situation as the paradigm, not an extreme one. Sure, keep the range of possibilities in mind. But if we focus too much on the outer limits of offensiveness, we run the risk of undermining the robust protection that the Bill of Rights requires for protesters.

    The point is, nobody’s come up with a good way to draw the line. The Supreme Court’s approach is – as you have pointed out – a moveable feast. Which is why I favour reading in a bit of backbone.

    I’ve tried to show that there are enough tools in the box to deal with extreme situations without relying on a rule so amorphous that it can – and will – be used to stymie legitimate protests.

  19. Andrew Geddis Says:
    September 7th, 2011 at 4:06 pm

    “My Phelps point was supposed to be ironic and self-deprecating. Boy did that fall flat.”

    Understood – but it’ll still be ALL YOUR FAULT!

  20. Steven Says:
    September 7th, 2011 at 4:07 pm

    Understood. But I still think you’re being over-generous.

  21. Russell Brown Says:
    September 7th, 2011 at 4:16 pm

    Good discussion!

    And I, also, deeply appreciate your work Steven.

    But I still don’t accept a comparison between Nicky and Morse. Right near the end of the book, he reiterates his views about the useful role of the NZDF, and its particular culture, in peacekeeping operations. He says:

    “There is worth in some countries being expert at helping to sort out conflicts: making them better not worse.”

    I think his is a logical and thoughtful stance. I don’t think Morse’s characterisation of true peacekeeping actions as just yet more imperial evil is, at all.

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