by Bryan Kirk
Wellington Regional reporter
Challenge Weekly
Vol. 58 Iss. 11, 3 April 2000
Moves are afoot to appeal a High Court decision which could have serious ramifications on the ability of churches and Christians to speak out on moral issues. The decision also raises questions as to the limits of "freedom of expression" of views and opinions in this country, freedoms which are protected by the Bill of Rights 1990.
On Friday 24 March a notice of motion on appeal was filed with the Court of Appeal, by Wellington Barrister, Peter McKenzie, against a High Court judgment upholding The Film and Literature Board of Review ban on two Christian videos on gay rights activism and AIDS. The appeal was lodged on behalf of the video's New Zealand distributor, Living Word Distributor's Ltd. (the appellant). The videos were produced by a leading Christian Film Producer in California, Jeremiah Films. Security for the appeal costs has been set by the Court at $3,000 and must be paid into the Court within 14 days of filing notice, or the appeal lapses.
As reported in a lead story in Challenge Weekly (21 March), the High Court upheld the Review Board decision banning the two videos: Aids: What You Haven't Been Told and Gay Rights/Special Rights: Inside the Homosexual Agenda. These videos, widely used as teaching tools in churches outside of New Zealand and still actively marketed by Jeremiah Films worldwide through its website, have received no restricted classification or ban in any other country.
The Banned Videos
As described by Jeremiah films on their website, the 75 minute video "Aids: What You Haven't Been Told [is] a "shocking and visually appealing documentary, filmed in twelve major cities in the United States and Europe. It unmasks the myths, cover-ups and political manipulations concerning the world's most deadly killer. Through interviews with top scientists, medical doctors, political leaders, homosexual activists, and AIDS victims, this film gives hard answers to tough questions. Questions like: Is there such a thing as safe sex? What is the virus and how is it transmitted? Is there a homosexual cover-up? What is likely to happen in the future? Know how you can protect yourself and your family..."
The 45 minute video "Gay Rights/Special Rights" includes footage of the 1993 march on Washington for gay, bisexual and transgender equal rights. Representatives of African American, and other ethnic groups are depicted as critical of gay attempts to liken gay calls for civil rights, with those of Martin Luther King for American blacks in the 1960s. They argue that calls for special minority status for homosexuals based on a behavioural-based factor (shared homosexual practices) cannot be justified by using the 1964 Civil Rights Act.
Background to High Court Case
In 1995, the Wellington-based Human Rights Action Group (HRAG) submitted the videos for classification to the Office of Film and Literature Classification. The then Chief Censor, Kathryn Paterson, classified them R18. Not content with this decision, HRAG then appealed that classification to the Film and Literature Board of Review, arguing that the videos should be declared "objectionable" and thereby unsuitable by definition for public screening.
At issue was section 3 of the Films Videos and Publications Classification Act 1993, which among other things, said a publication was "objectionable" if it dealt with matters "such as sex" in a manner that was "likely to be injurious to the public good."
In determining whether material is objectionable, s 3(3)(e) says particular weight should be given to whether members of any particular class of the public are depicted as inferior to other members of the public by reason of a characteristic which is a prohibited ground of discrimination under s 21 of the Human Rights Act 1993: in this case sexual orientation and disease status.
In the Board's decision, Board President Sandra Moran said, AIDS: What You Haven't Been Told associated sexual orientation with the spread of AIDS; thus falling within the parameters of s 3(3)(e) in depicting homosexuals and AIDS sufferers as inferior.
In The High Court
When Living Word Distributors Ltd appealed the ban to the High Court, their lawyer, Paul Rishworth, a senior law lecturer at Auckland University, argued that the videos drew a distinction between homosexual orientation and homosexual practices. The video transcripts, he maintained, did not support the claim by the Board, that the videos were alleging a causal link between sexual orientation alone and the spread of AIDS. He also pointed out that the videos indicated AIDS affected heterosexuals as well as gays, but that AIDS is a virus transmitted through sexual practices associated with homosexuals.
In delivering the Court's reserved judgment, Justice Heron said the Court had difficulty in considering the Review Board's analysis of the video's content, as the relevant legislation left such matters in the hands of the Tribunal concerned. "We are not convinced as to the power of the video in these cases [for us] to raise concern to the level suggested by the Board [a total ban] but we do not see such an assessment as part of our function," he said.
On the one hand he is saying that the material facts of the case are not being considered by the High Court because of their accepting the discretion exercised by the Board of Review; and on the other hand he is rejecting all five of the grounds of appeal advanced by Rishworth, using the material facts (e.g. the nature of the content) of the case, as determined by the Board.
The Bill of Rights Act 1990 was also discussed in the High Court judgment. Paul Rishworth advanced as one of his five grounds of appeal the view: "That the Board of Review made legal error in making classification decisions in relation to each video, that were inconsistent with the rights of the appellant under S. 14 of the New Zealand Bill of Rights Act 1990."
Judge Heron noted that Section 14 granted the freedom to seek, receive and impart information and that "The videos express directly or indirectly probably undetermined factual assumptions and conclusions which the overall right of freedom of expression would and should protect".
However, he noted that this freedom must be balanced against Section 19 which deals with freedom from discrimination. He believed the Board had adequately dealt with this matter of these two freedoms.
The sledge-hammer and nut principle
The fifth ground of the High Court appeal was that the Review Board failed properly to address and apply the statutory test for "objectionable" in the Act, by failing to take into account the purpose for which the videos were intended to be shown and their context. Both videos are preceded by clear warnings: "Due to the nature of the subject matter, viewer discretion is advised". Judge Heron noted that "whilst ... the videos have a USA context in every respect and involve people well removed from this country and about whom there would be little immediate knowledge in terms of their respective standings, the reality is that these videos were to be used ... as tools in respect of moral teachings by Church groups in New Zealand."
He went on to add: "Whilst mindful of the sledge-hammer and nut principle, in this area, we do not think these factors have been overlooked by the Board." The Board's decision to impose a total ban on the videos, given their USA context and the church-based context in which they were planned to be used, could indeed be viewed as comparable to using a sledge hammer to crack a nut.
Judge Heron also stated: "The videos express directly or indirectly probably undetermined factual assumptions and conclusions [p. 2].... The Court we must say has been troubled by the inroad into freedom of expression of opinions which this decision represents, particularly in the area of uncertain factual assumptions and premises, and a still evolving understanding of the phenomenon of homosexuality" (p. 14).
The Court is not alone in being troubled by the inroad into freedom of expressions of opinions, represented by this decision. |