Anzac Day arrests
There’s debate going on at Not PC over the arrest of Anzac Day protesters in Wellington.
As today’s Dominion Post editorial points out, the Anzac’s sacrifice ensured that we have the freedom to offend. However, the paper takes no stand on the arrests saying the legality of the protesters’ methods are now a matter for the courts.
Phil at Pacific Empire, who was at the Anzac service where the Peace Action protest occurred, blogged his thoughts and explained why he believes the arrests were justified.
The protesters unfurled anti-war banners, burned a New Zealand flag and sounded a horn during one of the speeches. Two of them were arrested. The question under debate at Not PC is whether the arrests of the protesters violated their right to free speech. Note that none of the ten or fifteen protesters who simply held a banner and shouted were arrested.
Phil says that “loudly disrupting the speeches and lighting a fire in a public place does not constitute free speech.” PC notes that the arrest was for disorderly behaviour and is no more a restriction of free speech than having your stereo shut down at 3am because it’s keeping the neighbours awake.
Commenter Matt B believes that the 3am noise control analogy doesn’t hold because of the political content of the “speech” and that the arrest “implies a low and arbitrarily-applied threshold for state intervention in expressing an opinion”.
So were the actions disorderly enough and was the speech content low enough to justify the arrests?
Did the sounding of the horn during Graham Fortune’s speech constituted an act of force, “noise pollution”, or did its expressive content warrant protection? It’s very tempting to let my disgust at the protesters push me into looking for an excuse to justify the arrests and then back-engineering a reason. On consideration I don’t think that this act alone warranted an arrest. When there’s doubt, the law should err on the side of freedom of expression. (On the other hand, if an old soldier who lost friends defeating tyranny slugged one of the rent-a-mobbers it would have made me happy inside.)
The second matter, flag burning, has been recognised as protected (if ineloquent) political speech in many places. In New Zealand, a flag burning conviction has been overturned as inconsistent with the bill of rights. The only question relevant to the prosecution is not the political content of the expression but the safety of setting fire to anything in a crowd.
Your thoughts? Where’s the line?
April 30th, 2007 at 9:40 pm
There is also the matter of public property. Is public property “fair game”, that is, does the state have any right to regulate behaviour on publicly-owned property? If the answer is “yes”, then banning flag-burning on footpaths or horn-blowing during memorial services are acceptable. If not, then anything from speeding to chaining yourself to state-owned railway tracks to entering a military firing range suddenly becomes OK.
Of course there is a middle ground. I’m inclined to think that the state can regulate activity on its own land, as long as the rules are not applied in a politically motivated way. After all, we would expect the same of a private landowner. And I suspect that protesters who did the same at an Anzac service, but representing any other political view, would receive the same treatment. Did their political views make any difference?
April 30th, 2007 at 10:21 pm
The public/private property distinction is entirely valid. On private property it’s perfectly acceptable to apply speech rules in any way the property owner wants to. The right to free speech doesn’t allow you to demand someone else’s microphone.
On public property, as you say, the state can regulate activity - but the state should never regulate opinion. The sticky question is what to do about behaviour that is part action and part opinion, like flag burning.
Either all burning should be banned or none. If burning things is permitted in general but illegal when the item is symbolic, like a flag or a bra, then the state is not regulating the action of burning but the opinion being symbolised.
More subtlely, a law that bans all burning but is only enforced against flag burners is also wrong. (Hypothetically, just the sort of thing a catch-all charge like “disorderly behaviour” could be used for.)
May 1st, 2007 at 10:33 am
“I may disagree with what you have to say, but I shall defend, to the death, your right to say it”
While I’m disgusted at what they did. Arresting them is the wrong response. Public contempt for what they did is a more suitable response.
If you arrest people for protesting causes you don’t agree with, where do you draw the line? Either you agree with free speech, or you agree with regulated speech. There is no middle ground.
May 1st, 2007 at 5:27 pm
In spirit I agree, MikeE - with the caveat that, given the nature of their actions, there may be legitimate non-speech reasons for their arrests.
May 1st, 2007 at 8:13 pm
Bernard - I agree, there may be other factors. But I don’t see them tresspassing, I don’t see them threatening anyone, I don’t see physical harm or property damage etc.
So, based on what we *know* ….I don’t see any justification for arresting them. I’m personally disgusted in their actions, but then I don’t particularily like fat chicks either. But you don’t see me calling for the widespread arrest of fat chicks.
…. actually… now that you think of it..
May 1st, 2007 at 8:59 pm
Actually, according to Salient, the university is considering laying a trespass complaint against the protesters. Seems they were using university property without permission…
May 4th, 2007 at 12:57 pm
Speaking of noise control
http://www.scoop.co.nz/stories/PO0705/S00085.htm
Waking up a police officer and singing a song about how you didn’t like them getting a search warrant against you is officially not disorderly.
May 5th, 2007 at 5:08 pm
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