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Censor right, but for the wrong reasons

By Steven | April 30, 2019

You probably know that the censor has banned the Christchurch mosque shooter’s manifesto. That is, he has classified it as “objectionable” under our censorship laws. So it’s an offence to possess it, even on your computer screen. Journalists, academics, or anyone else who thinks they have a proper interest, can apply for an exemption. The censor helpfully attaches an application form.

Barrister Graeme Edgeler criticised the decision. He thinks it was too broad. It should have been a “restricted” publication, available to some. The ban should have excluded, at least, journalists subject to the ethics codes and complaints systems of the Media Council and the Broadcasting Standards Authority. They shouldn’t have to fill out an application.

I think they’re both wrong. I think the law, as its written, requires the manifesto to be banned outright and doesn’t provide any discretion to exclude anyone. That is, the manifesto is deemed to be objectionable and cannot be given a “restricted” classification. This is what happened with the livestream video of the shooting.

That sounds like I’m agreeing with the Chief Censor. I’m not. Under the Films, Videos and Publications Classification Act, there are two ways for a publication to be objectionable. The first is about publications that are so bad they are deemed objectionable: things that tend to advocate or encourage things like bestiality or the sexual exploitation of children. Or to advocate or encourage:

acts of torture or the infliction of extreme violence or extreme cruelty.

That’s the category the livestream video of the shooting came under. No argument there. But what about the manifesto? I haven’t read it, but here’s what the censor says about it in the classification decision:

…it clearly promotes and supports crime, including murder, mass-murder and terrorism in the name of extremist ideology…

…The deliberate killing of children is mentioned several times throughout the document. The writer represents this choice as not only reasonable in the circumstances, but part of the reader’s duty…

…There are instructional elements to the publication that give potential attackers some guidance on how to select targets and choose the means to perpetrate mass murder.

[it contains] unambiguous calls for terrorist violence…

So here’s the thing. Isn’t that promoting extreme violence? I mean, isn’t trying to get others to kill multiple people… extreme violence? By definition?

The censor’s reasoning is that the manifesto “does not specify and direct the nature and degree of the violence to be employed.” Is he really suggesting that the manifesto wouldn’t be promoting extreme violence unless it told us to, I don’t know, slash immigrants to pieces with a machete?

He also says that the manifesto “is evidently intended to inspire like-minded people to follow the writer’s example”. But (he goes on) we can only understand that example, and its impact on the impact and persuasiveness of the manifesto, if we know what he did. His actual slaughter isn’t depicted in the manifesto; the reader has to know that information. That means the censor has to head down the second pathway to objectionable-ness, which involves a more contextual consideration of the publication.

I’m not sure that’s right. If some extremely violent event is well known, and is clearly associated with the publication, I’m not sure it needs to be described in detail before you can decide that the publication itself is encouraging extreme violence. If I tried to provide a detailed rationalisation for the Holocaust, and then tried to advocate another one, would the censor say my manifesto didn’t promote extreme violence because I didn’t go into sufficient detail about how the holocaust worked?

But I don’t think it matters. The shooter’s manifesto tries to persuade us to kill immigrants, and does so sincerely and at length, and with reference to explosives. That’s promoting extreme violence. That’s a ban. (The censor has no power to ban only parts of a publication like a manifesto, so if one bit is bad, the publication is out. In the 1990s, the censor banned an entire edition of New Truth and TV Extra because it contained ads for golden showers. What? You’ve got some old issues of New Truth mouldering in your garage? You might be committing an offence).

Note I’m not arguing about whether or not this law is good. I’m just arguing about whether it has been correctly applied.

If I’m right, then the censor should not have gone past the first pathway, and has no power to restrict the publication so that at least journalists can read it. (If I’m wrong, then I think I agree with Graeme that the wholesale ban was too wide).

So what about that second pathway to a ban? This is involves a complicated assessment of a set of statutory factors, aimed at answering a key question: is the availability of the publication likely to be injurious to the public good? Those factors are things like whether the publication deals with torture or sexual violence, exploits the nudity of children, or promotes crime. The censor quite rightly notes that it promotes crime in a way that is seriously injurious to the public good, and finds that’s really enough for a ban, even considering the range of other contextual factors.

But one part of his reasoning here seems odd to me. One factor he dismisses is whether the manifesto represents a class of people, such as racial or ethnic groups, as “inherently inferior to other members of the public by reason of any characteristic of members of that class.” The censor concludes that this factor doesn’t apply “despite the clear racist basis for the document”. Why?

…the document contains grudging admiration of the non-white races. Stated racial characteristics such as higher fertility, greater social cohesion and greater religious devotion are used to support the central notion that non-white races from a clear and present threat to white Europeans.

Um. Maybe so. But the very next page, the censor says the manifesto depicts its targets as “dehumanised and threatening”, deserving of death. Dehumanised? Okay to kill? Because of their ethic background? How is that not treating them as inherently inferior?

So, as a matter of law, I don’t argue with the result of the classification. But it strikes me as a strange way to get there.

 

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