It's Freedom, But Not as we Knew it, Jim

Speech Rights in the Maelstrom of Unbelief

Is free speech an important civil right? Sure is. Does this right derive from the Living God, or from human convention? In other words, when the state stops people from expressing a view or opinion is there a divine warrant for the law, or is it tyranny? Actually, it all depends. On what? On a cluster of considerations and cases.

Firstly, there is the general principle that human beings are made in the image of God and speech is an intrinsic part of that image bearing. If one were to conceive of the human race unfolding without sin--that is, the Fall having never occurred--there would be absolutely no restrictions on speech, for all speech would have been holy, just and good. When Adam named the creatures, he was able to do so perfectly. His speech was perfectly reflecting the very image of God Himself.

Secondly, since the Fall human speech has become terribly corrupted. Here is James's summary: "The tongue is a fire, the very world of iniquity; the tongue is set among our members as that which defiles the entire body, and sets on fire the course of our life, and is set on fire by hell." (James 3:6) Since the Fall, human speech has become the engine of evil and corruption.

Thirdly, the state has no general authority from God to restrain human speech, despite the fact that much of it is evil. The state is not a redeemer. The state cannot remove human sin. It cannot make people righteous. If the state, in an attempt to make all human speech more righteous, began to exercise unrestricted control over what people say, it would have warrant to go still further--to control the evil thoughts that express the evil words. These prerogatives belong to Christ alone, and have not been delegated to the state.

Fourthly, any authority the state has to interdict human speech must be restricted to those few occasions when speech is threatening the life and limb of others. Hence, Oliver Wendell Holmes famous illustration: free speech does not give one the right to stand up in a crowded theatre and yell, "Fire!" for the sheer mischief of it, leading to the death or potential death of fellow congregants crushed in the ensuing panic.

Fifthly, all public speech enciting people to break the law of God and turn upon fellow citizens, stripping them by force of their rights to their life, liberty, property, and lawful pursuit of happiness would be legitimately the domain of the state to restrict in some measure and prosecute. Speech which impedes peoples' lawful rights and activities is also a legitimate target for restriction: hence, public slander has been a form of speech which traditionally has been proscribed.

In the post-Christian West, free-speech rights which developed out of the Christian doctrines expressed above, are not unexpectedly eroding. Take away the foundations and the edifice crumbles. You cannot maintain the liberties produced by Christian beliefs about man, God, sin, evil, and governance upon non-Christian ground.

In the past few decades traditional free-speech rights have morphed in the post-Christian West. Focus has gone on what would constitute reasonable harm and damage to others. Speech can be restricted if it damages and harms other people. What constitutes harm? Well, emotional upset for one. Speech which makes people enraged and angry, for another. Speech which offends is now restricted.

In other words, free speech liberties and rights are rapidly disintegrating. Offence, in the end, is in the ear of the hearer. This fits with our modern "enlightened" views of the state. The government in Western Unbelief has become our great redeemer, to preserve us from evil and make us all good. No wonder the state will move aggressively to control our speech. Unbelief, having denied the Living God, stupidly looks for its deity in other places. Almost invariably its eye alights upon the perceived locus of supreme power--the state. The people demand that the state control speech. Is it not a legitimate function of deity? Too late we discover that all idol gods are base and cruel. Tyranny grows; liberty erodes.

A free speech case has recently hit the headlines in New Zealand. A protester burned the New Zealand flag during an Anzac Day celebration. The courts convicted her of "offensive behaviour". But no longer.

Valerie Morse was convicted of offensive behaviour after setting the flag alight in an anti-war protest in Victoria University's law school grounds, opposite the Cenotaph, during the 2007 Anzac Day dawn service. Her conviction was upheld by the High Court and Court of Appeal. But in a decision released yesterday, the Supreme Court said earlier rulings had mistaken the meaning of offensive behaviour in the Summary Offences Act.

So, the Supreme Court found something in the law which the lower courts overlooked. Firstly, let's consider the reasoning of the lower courts.

Wellington District Court judge Oke Blaikie found offensive behaviour to mean behaviour capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person. He considered a tendency to disrupt public order was not required.

This is nonsense--but an apt illustration of how free speech rights are being eroded in the West. Firstly, there is the abstraction of a "reasonable" person. A person considered reasonable is one whom society regards as such. One man's reason is another man's idiocy. If this mythical "reasonable" person takes offence or is made angry by the speech of another, then the speech rights of the offending person can be circumscribed and restricted. It will all come down to toleration of that speech which the state considers to be reasonable.

To illustrate: blasphemy against the Name and honour of God and His Messiah is deeply offensive to earnest Christians, causing real anger, resentment, disgust and outrage. But is this reaction reasonable? Does a Christian have good reason to be so offended? No--because New Zealand is a secular materialistic society, and as such, it does not regard such religious doctrines as worthy of reasonable people. Under such an approach, a reasonable person will be whomever the government (reflecting probably the majority of citizens) determines. Restricting speech because it offends others--even though they be deemed by the good pleasure of the state to be reasonable-- is a severe erosion of the historical liberties we have enjoyed.

So, did the Supreme Court revert to the more free, Christian position with respect to free speech? No. It came out with an equally pernicious doctrine.

But the Supreme Court thought otherwise, ruling unanimously that offensive behaviour must give rise to a "disturbance of public order". Because the district court proceeded on a wrong basis of law, the conviction was thrown out

This, we are told is a new precedent.

However, Auckland University law professor Bill Hodge said yesterday's decision appeared to set a new precedent, giving protesters more right to freedom of expression under the Bill of Rights. "You can now burn the New Zealand flag any time, anywhere you like, because I can't think of a time any more sensitive with the right people in the right place than Anzac morning in our nation's capital while the morning ceremony is ongoing.

Laying aside the emotive connotations of flag burning, Bill Hodge has missed the real point. The real revolutionary doctrine "discovered" by the Supreme Court is that speech can be restricted if it disturbs public order--for then it is proved to be offensive. This highlights just how far speech in New Zealand is now restricted. If we were to stand up and declare publicly that homosexuality is a gross sin and that unrepentant, unbelieving homosexuals will not enter the Kingdom of God, one's speech could be legitimately proscribed provided people rioted in anger at our remarks.

As we have noted, since offensive is in the ear of the hearer, all that is required to stop speech is to generate a reactive public disturbance. In the old days, free speech liberties meant that the rioters would be indicted and punished for breach of the peace. Nowadays, it is the speaker who is indicted for breaching the peace. It becomes easy to shut opponents down if one is prepared to show how offended one is at their remarks by disturbing public order.

Rioting, chanting, offended Islamics can shut down all criticism of Muhammed and Allah and Islamic people. It all depends on whether they choose to take offence and express their anger in a breach of the peace. Unionists can shut down critics if they man the barricades in outrage. If they riot against offending strike-breakers, the government will now, by law, arrest the strikebreakers for offensive speech. How about the now widespread antics of anarchists smashing glass and people in the streets? If they can coherently identify what it is that offends them so, the government will move to take the offensive speech and speakers away.

In the final analysis, all it would take, it would seem, is an enraged person yelling, "Shut up, or I'll kill you" and the state will move rapidly to shut the provocative speaker down. Welcome to the wonderful world of non-Christian, secular free speech rights.