Section 14

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?

Flag burning, like neo-Nazi propaganda, is one of those topics that strains the edges of tolerance for free expression. It has to be repeated over and over: Free speech without the freedom to offend is not free speech.

Idiot/Savant, of No Right Turn, has noted that the Assistant Commissioner of the Metropolitan Police has called for a ban on flag burning in the UK.

Even in New Zealand, our half-hearted NZ Bill of Rights has been used to protect flag burning as political expression. In 2003 Paul Hopkinson burnt a flag on the steps of Parliament. He was charged under the Flags, Emblems, and Names Protection Act 1981 and aquitted on appeal by a judge who reread the Act in concert with the NZ BORA.

The argument is bitterly contested in the United States, where the 1989 Flag Protection Act was struck down by the Supreme Court in United States v. Eichman. In the majority decision upholding flag burning as a protected form of expression, Justice Brennan said, “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”