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Is Macsyna King being censored?
By Steven | June 30, 2011
No doubt you’ve heard that the upcoming Ian Wishart book by Macsyna King is being boycotted by a range of bookstores.
Is this censorship, as some are claiming?
No. Well, not really. Censorship is usually regarded as emanating from the state. There’s no law against stocking this book. There’s no legal penalty for doing so. Your right to freedom of expression under the Bill of Rights limits the government’s powers to restrict information flows. It’s not directly implicated here.
Besides, bookshops decide every day which books to stock and which books not to stock. Is that censorship? Similarly, libraries must choose what to buy. Is that censorship? The media decide which stories to cover. Is that censorship?
Nor is the book actually being stifled. You’ll be able to buy copies through Wishart’s website. In fact, the campaign against it may well, as some have noted, give it more publicity and increase sales.
Still, that’s not to say that there is no free speech issue here. The government isn’t the only actor that can trammel free speech. It might not even be the most significant actor.
And this action does have some similarities to the aspects of censorhip we’d usually regard as concerning. It wants to stifle a book because of the offensiveness of its content (and not just because, say, a bookseller thinks its not likely to sell very well). It seeks to tamp down on King’s viewpoint. It wants to keep out of the public domain information that might be a useful contribution to a range of public debates. It wants the head offices of book chains to order their branches and franchises not to exercise their own choices about what to stock. It threatens coercion (ie a customer boycott). It may well have a very significant practical effect in suppressing the distribution of the book. There’s an uncomfortable element of thought policing: we disapprove of this book so we want to stop you from being able to buy it in the shops. There’s not a clear sense of the harm that this book will do. Nor is there a clear articulation of exactly why it’s being opposed. After all, no-one has yet read it.
For those reasons, the Bill of Rights makes it harder for the government to take actions like this. But as I said, it doesn’t touch private action. Is this grassroots community activism? Or mob rule?
Topics: Censorship, NZ Bill of Rights Act | 4 Comments »
4 Responses to “Is Macsyna King being censored?”
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July 1st, 2011 at 6:58 pm
[…] reason why it shouldn’t be stocked, apart from “we don’t like it/Macsyna”. Like Steven Price says, no one has actually read the book, how can they make an informed decision that they don’t […]
July 4th, 2011 at 7:36 am
“[The Bill of Rights] is not directly implicated here. … But as I said, [the Bill of Rights] doesn’t touch private action.”
Hmmm.
It seems folk like us that think this are getting thin on the ground… Geddis and I have been arguing about this (or, at least, the UK equivalent) elsewhere. I remain sceptical about this horizontal effect nonsense… But if it’s accepted as legitimate, it might surely be engaged here?
July 4th, 2011 at 1:45 pm
In what sense?
I don’t see a legal dispute which some Court could find that it should rule one way or another because of the Bill of Rights.
e.g. standard horizontal effect case: one party defames another, seeks new defence for political speech, court engaged, court expounds.
That doesn’t apply here.
Unless you’re looking at horizontal effect as being ‘this person’s rights of free speech have been affected by private action, the state is under a positive obligation to promote free speech, and to ensure in this particular case that free speech is increased by taking some action, which it has failed to do’. I don’t see that this is horizontal: it’s vertical, but with a question about whether there is a positive obligation to promote free speech (and how far it might extend).
July 5th, 2011 at 9:59 am
Graeme
Well. At its best/worst, the horizontal effect principle says the courts are required to develop the common law in conformity with Bill of Rights (NZ)/Human Rights Act (UK), by dint of those Acts “applying” to them under s 3(a) (NZ) / s 6(2)(a) (UK). (There are some textual and structural differences between the two, but I’m putting them to one side for now.)
I take it to mean that the courts must consider whether any pre-existing common law actions (eg, maybe, the tort of unlawful interference with trade) should be tweaked in order to make it rights-consistent. Or, presumably, if the common law does not so provide a tort, to invent one – as they can and do under the common law – in order that those rights be respected. That’s the logical conclusion to the horizontal effect doctrine, as applied here in the UK.
Of course, there’s the tricky question of whether the evaluation of whether something is “rights-consistent” is coloured by the horizontal context – but a matter of application, following the assumption of the need to develop things in conformity.
Daft, really, I think.
I much prefer the common law fabric approach, which suggest the courts just need to take account of the human rights instruments as part of constitutional backdrop as and when they develop the common law. So, not directly implicated but not irrelevant.
This was *the* issue when I was a young student of the Bill of Rights, but it seems that the weight of opinion has since swung the other way in favour of strong horizontal effect.