Free speech and a gay horse

NZCPR | 12 Aug 2016

“The freedom to criticise or ridicule ideas – even if they are sincerely held beliefs – is a fundamental freedom of society. In my view the right to offend is far more important than any right not to be offended… because one represents openness – and the other represents oppression.”
– British comedian Rowan Atkinson, 2012.

The right of candid expression is the hallmark of an open society. The ability to challenge ideas and the perceived wisdom of the day, in a free and unfettered manner – even at the risk of offending others – is the cornerstone of liberty.

In Britain, the right to offend had been eroded by Section 5 of the Public Order Act. It stated that a person was guilty of an offence if he “uses threatening, abusive or insulting words or behaviour… or displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.”

Through the inclusion of the word “insulting” in Section 5, criminal law had been extended to protect people from having their feelings hurt.

In 2005, 21 year old Sam Brown, an Oxford University student, fell victim to the law and had to spend the night in a police cell. His crime was to make comments about the sexuality of a Police officer’s horse: “Excuse me, do you realise your horse is gay?”

A newspaper report explained that he had been out with friends celebrating the end of his final exams when he staggered past two police officers on horses in the early hours. Despite requests to desist, the inebriated Sam Brown repeatedly asked an officer if his horse was gay. As a result, he was arrested under section 5 of the Public Order Act for making homophobic remarks and ‘causing harassment, harm or distress’. He was handcuffed, taken to a nearby police station and freed the following day. He was fined £80.

Mr Brown said in his defence, “As far as I know calling a horse ‘gay’ is not offensive. I don’t think I’ve committed a crime – I wasn’t talking about a human being. A friend I was with is homosexual and doesn’t think I did anything wrong.” He appealed against the fine, saying the officers had been “very nice about it. I think they realised how absurd the charge was.”

A Police spokesman said, “Although he thought calling a police horse gay was funny, it could cause offence to people walking past.” However, the case was thrown out of the Oxford Magistrates’ Court, for lack of evidence.

This absurd case featured in a campaign launched in 2012 to remove the word “insulting” from the Public Order Act. Comedian Rowan Atkinson, the star of Mr Bean, was one of the high profile celebrities who joined the campaign. He told Parliament, “When I heard of some of these more ludicrous offences, I remembered that I had been here before in a fictional context. I once did a show called Not the Nine O’Clock News, and we did a sketch where Griff Rhys-Jones played Constable Savage, a manifestly racist police officer to whom I, as his station commander, is giving a dressing down for arresting a black man on a whole string of ridiculous, trumped up and ludicrous charges. The charges for which Constable Savage arrested Mr. Winston Kodogo of 55 Mercer Road were these:

‘Walking on the cracks in the pavement’. ‘Walking in a loud shirt in a built up area during the hours of darkness’. And one of my favourites, ‘Walking around all over the place’. He was also arrested for ‘Urinating in a public convenience’ and ‘Looking at me in a funny way’.

Mr Atkinson went on to say, “Who would have thought that we would end up with a law that would allow life to imitate art so exactly. I read somewhere, a defender of the status quo claiming that the fact that the gay horse case was dropped after the arrested man refused to pay the fine… was indicative of a law working well, ignoring the fact that the only reason those cases were dropped was because of the publicity that they had attracted. The Police sensed that ridicule was just around the corner and withdrew the actions. But what about the thousands of other cases that did not enjoy the oxygen of publicity? That weren’t quite ludicrous enough to attract media attention? Even for those actions that were withdrawn, people were arrested, questioned, taken to court and then released. That isn’t a law working properly: that is censoriousness of the most intimidating kind, guaranteed to have a ‘chilling effect’ on free expression and free protest.”

Campaigners argued that the law had created an ‘authoritarian’ and ‘controlling’ society. There was a ‘new intolerance’ – an intense desire to ‘gag’ uncomfortable voices of dissent. However, such issues are not addressed by silencing the opposition through the force of the law, but by airing and debating them in a robust and open manner. Society, they said, needed to toughen up, so as not to take offence at any criticism.

Rowan Atkinson concluded, “The repeal of this clause will be only a small step, but it will I hope be a critical one in a project to pause and slowly rewind a creeping culture of censoriousness. It is a small skirmish in the battle to deal with what Sir Salman Rushdie refers to as the Outrage Industry: self-appointed arbiters of the public good, encouraging media-stoked outrage, to which the police feel under terrible pressure to react. A newspaper rings up Scotland Yard: someone has said something slightly insulting on Twitter about someone who we think a national treasure: what are you going to do about it? And the police panic and they scrabble around and then grasp the inappropriate lifeline of Section 5 of the Public Order Act: that thing where they can arrest anybody for saying anything that might be construed by anybody else as insulting. They don’t need a complainant, or a real victim: they need only to make the judgment that somebody could have been offended if they had heard or read what has been said. The storms that surround Twitter and Facebook comment have raised some fascinating issues about free speech. So far, we have learnt two important lessons. Firstly, that we all have to take responsibility for what we say, which is not a bad lesson to learn. And secondly, we’ve learnt how appallingly prickly and intolerant society has become of even the mildest adverse comment.”

While the Reform Section 5 Campaign succeeded in removing the word “insulting” from British law in 2014, it remains in New Zealand law – raising concerns over whether it too is having a ‘chilling effect’ and should be removed. Under Sections 61 and 131 of the Human Rights Act, it is unlawful to promote anything “threatening, abusive, or insulting”, that could create racial disharmony. While the penalty is imprisonment for up to 3 months or a fine of up to $7,000, the Human Rights Commission claims that the threshold for complaints is high, and must be balanced against the right to free expression.

Without a doubt, there is a growing intolerance to free speech around the world. A recent article in the Economist found, “From the mosques of Cairo to the classrooms at Yale, all sorts of people and groups are claiming a right not to be offended. This is quite different from believing that people should, in general, be polite. A right not to be offended implies a power to police other people’s speech. ‘Taking offence has never been easier, or indeed, more popular’.”

The executive chairman of Saatchi & Saatchi, New Zealander Kevin Roberts, has just found out how dangerous it is to speak the truth, having been forced to resign last week, following a storm of criticism from feminist groups after he challenged a prevailing view about diversity. When asked by a reporter whether there was a problem with a lack of gender diversity in the advertising industry, he said, “not in my view”, and that he wouldn’t waste any time worrying about it at his company.

A furore also erupted last week over the Chiefs rugby team’s behaviour on a night out after losing a rugby semi-final, when a stripper who had been hired, accused the team of heckling and groping her.

Margaret Comer, an executive of the Gallagher Group, the team’s sponsor, who is also on the board of the Waikato Women’s Refuge, initially refused to condemn the players’ actions, saying, “If a woman takes her clothes off and walks around in a group of men, what are we supposed to do if one of them tries to touch her? It’s not nice and perhaps the stripper shouldn’t have been hired, but I’m reluctant to say that the boys were out of line.”

By the end of the week, she had issued an apology: “I sincerely apologise for my comments, I feel terrible that my poor choice of words have caused hurt and alarm… I most definitely do not condone any kind of mistreatment of women and am extremely regretful that my words do not reflect the high standard I expect of myself and those I am associated with.” Whether the apology saves her, remains to be seen.

While calling a spade a spade has always been a fundamental part of the ‘Kiwi way’, people are more reluctant to speak out nowadays for fear of being targeted and accused of racism, sexism, homophobia – or the multitude of other politically correct labels used to silence opponents.

But there is a real danger to society when people no longer feel they can speak the truth, especially in the public policy arena, where robust debate is crucial.

Take the case of the absurd comments recently made by Waikato University’s Associate Professor Leonie Pihama, that colonisation is the cause Maori child abuse: “Historical trauma caused by colonisation is the root cause of intergenerational issues, particularly child abuse within Maori families.”

Unchallenged, there is a real risk that such misconceptions could become the accepted orthodoxy – instead of being seen as part of the ideological agenda of the Maori supremacy movement.

In reality, since it is the breakdown of the family that creates the environment for child abuse to flourish, meaningful change, will only come through policies to strengthen the family.

US President Barak Obama – a strong advocate for the family – touched on this in 2008: “If we are honest with ourselves, we’ll admit that too many fathers are missing – missing from too many lives and too many homes. We know the statistics – that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and twenty times more likely to end up in prison. They are more likely to have behavioural problems, or run away from home, or become teenage parents themselves…”

This week’s NZCPR Guest Commentator, author and journalist, Mike Butler, has been investigating another race-based misrepresentation that also has its roots in family breakdown – this time an urgent claim to the Waitangi Tribunal by retired probation officer Tom Hemopo, blaming the government for the high numbers of Maori in jail. In his excellent report, Mike warns:

“Any reasonable person would dismiss the claim because, firstly, prisons are populated by people convicted for offending. Secondly, a person with a tiny percentage of Maori ancestry should not be identified as exclusively Maori – if a Maori was defined as a person with at least 50 percent Maori ancestry, the Maori prison population would shrink dramatically and instantly. And thirdly, offenders are or should be responsible for their offending.”

It’s very dangerous indeed when society muzzles free speech. To debate complex issues, the right to speak our mind and stand by our beliefs – even at risk of insulting or offending others – is crucial. Surely free speech is far more important than appeasing the sensitivities of those who take themselves and others too seriously.

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