FreeSpeech.org.nz

Contributed by Bernard Darnton.

This article was originally published as the cover story in the December 2006/January 2007 issue (#73) of The Free Radical.

In the Soviet Union, Goskomizdat – the State Committee for Publishing Houses, Printing Plants and the Book Trade – ensured that all publications were in accordance with the official ideology and politics of the ruling party. The Soviet Union might be long gone but the desire to clamp down on those who don’t obligingly echo the party line is alive and well in Wellington.

Helen Clark neatly summed up her attitude to free speech while under sustained attack during this year’s pledge card funding row. She said, “Allegations of corruption are intolerable in a Western liberal democracy. One blogger brought that comment into perfect clarity when he responded on his website, “No, Miss Clark. Corruption is intolerable. When allegations of corruption are intolerable, it’s no longer a Western liberal democracy.”ⁱ

The recent furore over Labour’s theft of public funds to pay for their ‘pledge card’ election propaganda has brought the Clark government’s totalitarian instincts into the foreground. Without even an atom of contrition, Labour lashed out viciously at anyone who dared suggest they’d done wrong. So intolerant of criticism are they that they’re now proposing some of the most expansive attacks on free speech New Zealand has ever seen.

During the pledge card campaign, Labour tried several times to stifle the debate, which was clearly not going in their favour. In August the New Zealand Herald produced a storyⁱⁱ called “Labour’s Pledge Card Spin” in which they outlined “The Spin” and “What Actually Happened”. Finance Minister Michael Cullen mused aloud that afternoon that the Herald might want to “consider its position” and noted that the government was considering the paper’s parent company’s tax position.

One of Labour’s favourite diversions during the campaign was a prolonged attack on the Exclusive Brethren church, who had run attack advertising at the last election (notably, with their own money). It came to light that some Brethren run businesses were taking advantage of employment law loopholes. The government has promised that those loopholes will be closed as punishment for the Brethren’s campaigning against them.

A chilling effect is already being felt by other organisations. In October, the National Party tried to buy space at Wellington Airport for their “Departure Gate” advertisements, humorously suggesting that it was time for Helen Clark to go. The airport refused to put up the ads, saying they were “too politically sensitive.”ⁱⁱⁱ At the time, Wellington Airport was awaiting a government decision on an Air New Zealand-Qantas codeshare agreement, which could hit airport profits, and its part-owner, Infratil, is trying to get an agreement to run commercial flights from Whenuapai air base near Auckland. With this government’s vindictive history, putting up the opposition party’s advertising is asking for trouble.

More of the same is coming. Charities were warned, also in October, that they risked losing their tax-exempt status if they indulge in too much political activity.^iv All charities will have to be registered from mid-2008 and then the ministerially-appointed board of the Charities Commission will decide who gets to keep their status. The temptation for charities to censor themselves to avoid being financially punished will be strong. Charities that engage primarily in political activism, from across the political spectrum, like Sensible Sentencing and the Child Poverty Action Group were understandably outraged.

It is commonly called campaign finance reform, but it is nothing of the sort. It is simply the assertion of the government of a new, audacious right: the right to determine the timing, content, and amount of political advocacy about the government.While attempting to chill dissent by exercising its power in other domains, Labour is also planning a more direct assault on free speech with its plans to further regulate election campaigning. They have proposed a three-fold package to tighten their grip on power. Under the euphemism of “campaign finance reform” they plan to introduce state funding of political parties, crack down on anonymous donations to political parties, and – worst of all – forbid third-party campaigning during an election.

In characteristic dystopian manner, the Clark government has looked to muffle criticism of its own corruption by dressing up attacks on dissenting opinion as anti-corruption measures. As Pulitzer Prize-winning author and columnist George F. Will put it in this summer’s Cato’s Letter:^v

“There is no greater threat to liberty in [the United States] than the fourth kind of politics, the politics of speech rationing. It is commonly called campaign finance reform, but it is nothing of the sort. It is simply the assertion of the government of a new, audacious right: the right to determine the timing, content, and amount of political advocacy about the government. It is the most astonishing slow-motion – although it is gaining speed – repeal of the First Amendment.”

And so it is here, but without the protection of a constitution to guard free speech.

The United States has the best developed free speech jurisprudence in the world but there have been inroads made into its constitutionally protected freedoms. In the context of election funding, there has been a systematic whittling down of free expression since Watergate, ostensibly in order to combat corruption – the same excuse being used in New Zealand.

Public financing of presidential election campaigns has been upheld by the Supreme Court of the United States because, they claim, it fosters First Amendment objectives by enlarging and helping public discussion and participation in the electoral process. The Federal Election Campaign Act allows for some private donations to be matched from public funds.

Aside from the clear libertarian objections to taking someone’s money compulsorily and handing it to a political opponent, the major free speech concern is that public funding of election campaigns may violate the neutrality principle. The neutrality principle holds that the government must have a neutral point of view whenever it either subsidises or restricts speech.

To promote free speech and a more diverse political conversation we should be abolishing restrictions, not extending the regime to other forms of electoral activity.Labour’s proposal for New Zealand political parties is that they are funded from the state purse based on their performance at the last election. This clearly reinforces incumbency and artificially amplifies the (already louder) voice of the largest parties to the detriment of the smaller parties. This is especially true when, as in the 2005 New Zealand election, the race is close and voters who would usually support smaller parties shifted support to one of the two big parties to try and push whichever they perceive as the lesser of two evils over the line.

We already have a variation on this situation whereby the Broadcasting Act makes it illegal for political parties to buy television or radio advertising except with public money from a fund allocated by the Electoral Commission. These rules were brought in, in preparation for the change to proportional representation, to smother new upstart parties so that they didn’t go taking too much attention away from the traditional parties.

To promote free speech and a more diverse political conversation we should be abolishing the broadcasting restrictions, not extending the restrictive regime to other forms of electoral activity.

The American experience is also relevant to Labour’s second proposal, the limiting of anonymous campaign donations. The Supreme Court upheld disclosure requirements, saying that donating money was more akin to “conduct” than “speech” and that it was legitimate to require disclosure as a protection against corruption.

Political speech must be especially protected because it is in the political arena that all other freedoms must be protected.Clearly the government should be allowed to legislate against bribery but this judgment fails to account for the fact that almost all donations are made with honest intent. It fails the “strict scrutiny” test which, in free speech jurisprudence, requires that a restriction on speech, even if it is incidental, be narrowly tailored to its purpose (here, preventing corruption) and using the least restrictive means to achieve its goal. A blanket disclosure requirement affects vastly more innocent people than it does guilty and as such is bad law.

In New Zealand, Labour has made murky suggestions about anonymous donors buying policy from the National Party but has failed to produce any evidence, credible or otherwise. Far more likely, is that the policy came first and the donors who wish to see that policy enacted came forward afterwards. Labour has used its own unsubstantiated rumours to launch an attack on anonymous donations.

While disclosure of donors could provide some minor protection against corruption, it is far more likely that the proposed law’s purpose is to chill dissent. New Zealand is a small country and the government occupies nearly half the economy. Most people have business dealings with the government in one way or another. The Clark government is known to behave vindictively against dissenters and so it’s understandable that people would want to keep their donations to the opposition anonymous. Until Labour cleans up its own behaviour and attitudes, we would be naïve to think that their call to restrict anonymous donations has anything to do with preventing corruption. It would be far more in character for them to be attempting to punish dissenters.

The third prong of Labour’s assault is on third-party campaigning. This is an area where the US Supreme Court got it right. They struck down any expenditure limits on campaign spending whether by candidates themselves or by other interested parties. They rightly concluded that political speech was so important that no restriction on its purchase could be allowed by the Constitution.

The Clark government’s assaults on free political expression must be resisted because if we fail to withstand these assaults it may be illegal to resist the next.Labour seems to have concluded that political speech is so important that no one else should be allowed to have any. Speaking about third party campaigning on National Radio in September, Labour strategist Pete Hodgson said it was likely that they’d “simply forbid it, that [we] would simply say you’re not allowed to have a campaign.”

The proposed ban comes in the wake of this government’s disgust that the Exclusive Brethren church dared to campaign against them during the last election. This ban would be an absolutely outrageous attack on free speech. If it became illegal to criticise the government during an election campaign, for this is clearly the aim, surely we could no longer consider New Zealand a free country.

The Clark government is not nibbling at the edges of free speech; they are not proposing legislation with other goals that has an incidental impact on free speech; they are engaged in both direct frontal assault and deliberate flanking attacks on free speech.

All governments have a natural tendency to regulate and to censor. To maintain an open society the rules need to be deliberately tilted in favour of free expression. Political speech must be especially protected because it is in the political arena that all other freedoms must be protected.

The Clark government’s assaults on free political expression must be resisted because if we fail to withstand these assaults it may be illegal to resist the next.

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