Section 14

The Supreme Court has upheld the right to protest (PDF) by throwing out the disorderly behaviour conviction of a man who protested outside a policewoman’s home.

A couple of days after being woken at 3am by police with a search warrant, Allistair Brooker followed the officer responsible home after her night shift and later that morning knocked on her door, waking her up. When told to “piss off” he left the property but stayed on the street outside singing a song about how unpleasant it is to be woken up unexpectedly.

Brooker was arrested and later convicted of disorderly behaviour. He took the conviction all the way to the Supreme Court, where it was overturned.

After discussing the limits of the disorderly behaviour charge, Chief Justice Sian Elias said in her judgement:

A tendency to annoy others, even seriously, is insufficient to constitute the disruption to public order which may make restrictions upon freedom of expression necessary.

Elias has got it right - the right to express yourself must include the right to annoy others. Any alternative would effectively ban dissent.

Brooker should be congratulated for two things. The first is the good-natured (impish, even?) manner of his protest - something the Anzac Day vermin, also facing disorderly behaviour charges, might like to consider. Second is his resolve in taking a minor charge all the way to the Supreme Court. It is these sorts of decisions that determine how free we are in the long run and it takes courageous defendants to get these decisions made.

Hat tip: No Right Turn.

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?