by Bryan Kirk
Wellington Regional Reporter
Challenge Weekly
Vol. 58 Iss. 9, March 21, 2000, pp. 1, 7.
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"I may disapprove of what you say, but I will defend to the death your right to say it." Widely attributed to have been said by the famous French Renaissance humanist and "free-thinker" Voltaire (1694-1778). Voltaire ridiculed Christianity in his writings.
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"The Court we must say has been troubled by the inroad into the free expression of opinions which this decision represents."
This was conceded by Justice Heron in the Wellington High Court when he dismissed an appeal against the banning of two videos intended for screening to Christian and Church groups.
The two American videos: "Gay Rights/Special Rights: Inside the Homosexual Agenda" and "AIDS: What You Haven't been Told" had been produced by Jeremiah Films and distributed in New Zealand by Living Word Distributors Ltd.
In 1995 the Wellington-based Human Rights Action Group (HRAG) submitted the videos for classification to the Office of Film and Literature Classification. They were seeking that a restriction be imposed on the videos. In December 1996, the then Chief Censor, Kathryn Paterson, classified them R18.
HRAG sought a review from the Film and Literature Board of Review, which subsequently classified the videos "objectionable". This would mean that it was an offence (punishable by a fine of up to $20,000 or a year's imprisonment - the highest category of restriction available under the law) for anyone to screen them.
However, one member of the Board, although not dissenting from this opinion, indicated that she would have preferred a classification of R18 with excisions, and wished to record her concern that this decision should not be interpreted as precedent for suppressing mere opinion, as opposed to opinion plus misinformation of a nature that makes s. 3(3)(e) of the Films, Videos and Publications Classification Act 1993, of particular importance.
Living Word Distributors Ltd then appealed to the High Court. Justices Heron and Durie dismissed the appeal.
"Objectionable" factors
At issue in the High Court was section 3 of the FVPC Act (1993). Among other things s. 3 said a publication was objectionable if it dealt with matters "such as sex" in a manner that the availability of the publication would be "likely to be injurious to the public good."
In determining whether this is objectionable, s. 3(3)(e) says particular weight should be given to whether it represents members of any particular class of the public as being inferior to the other members of the public by reason of a characteristic which is a prohibited ground of discrimination under s21 (1) of the Human Rights Act 1993. These characteristics include sexual orientation and disease status.
Chief Censor's View
Chief Censor, Kathryn Paterson, had rejected the argument put forward by HRAG and by representatives of the Human Rights Commission, that the videos could be seen as "hate literature." "Fundamentalist Christianity is put on a pedestal by bestowing a virtuous view of its own values, moralities and lifestyle and contrasting those to those of other sectors of society, with an entrenched conversionist message ... Thus the literature is intolerant rather that hateful per se," her decision reads.
In discussing "Gay Rights/Special Rights" she said the Classification Office believed the gay community is "strong enough to withstand such a biased onslaught. It was also felt that the wider adult community would be discerning enough to recognise the potential for injury to the public good in such a skewed and unbalanced presentation...However the message might be misinterpreted by a less worldly younger audience." An R18 classification was deemed appropriate for both videos.
Before the Board
In its written submission before the Review Board, HRAG asked that both videos be classified as objectionable or objectionable except in the hands of certain university students (such as Gay and Lesbian Archives - for research purposes), or R18 provided certain excisions were made.
In the Board's decision, Board President Sandra Moran criticised "AIDS: What You Haven't been told" for associating sexual orientation with the spread of disease.
"To associate orientation with the spread of disease is to fall precisely within the words of s. 3(3)(e): people with a homosexual or bisexual orientation, and people with HIV are represented as inherently inferior to other members of the public because their orientation and disease status is held to be responsible for a public health crisis" the decision reads.
In discussing the two videos, the decision said advocacy of an opinion ought not to be grounds for censorship. "These videos however go beyond mere advocacy of an opinion. They contain opinion based on misinformation...which is targeted by s. 3(3)(e) of the Act, and which by definition is of special importance to the Board in deciding whether or not the availability of these videos is likely to be injurious to the public good."
The Bill of Rights
The apparent contradiction between sections 14 and 19 of the Bill of Rights Act was discussed. Section 14 grants freedom to seek, receive and impart information and opinions of any kind in any form. Section 19 deals with freedom from discrimination. Both can be subject to reasonable limitations prescribed by law which can be demonstrably justified in a free and democratic society.
"Parliament appears to have signalled its intention to limit the freedom of expression set out in s.14 of the Bill of Rights Act 1990, first by enacting the Films, Videos and Publications Classification Act 1993, and secondly by allowing the freedom of expression to be limited by reference to the prohibited grounds of discrimination in the Human Rights Act 1993", the decision reads.
Appeal to the High Court
Living Word Distributors Ltd appealed to the High Court where the case was heard by Justices Heron and Durie. Justice Heron gave the reserved judgement of the court in early March.
Counsel for Living Word Distributors Ltd argued that the Board did not properly apply the statutory test for "objectionable", on a number of grounds, including making no finding on whether it was injurious to the public good. Justice Heron noted in response that s. 3(1) talks about being "likely to be injurious to the public good."
"We think that there is sufficient basis for the conclusions reached by the Board...and that a finding of injurious to the public good would generally be available when the factors in s. 3(e) are present."
An argument based on Section 6 of the Bill of Rights Act was also rejected. Section 6 says that where an enactment could be given a meaning consistent with the rights and freedoms contained in the Bill of Rights, this meaning should be preferred to any other meaning.
Justice Heron noted section 19 incorporated the same protections with which the Board was concerned.
A Warning Note
"The Court we must say has been troubled by the inroad into the free expression of opinions which this decision represents, particularly in this area of uncertain factual assumptions and premises, and a still evolving understanding of the phenomenon of homosexuality," Justice Heron noted.
A Further Appeal?
Living Word Distributors Ltd has until 28 March to file an appeal, should they wish (or can afford to), with the Court of Appeal. |