(Dominion, Thursday 31 August 2000, p. 4).

by Alan Sampson

The Court of Appeal has issued a landmark decision defending free expression and the "free flow of information and ideas" from censorship.

The court has quashed a High Court ban of two fundamentalist, anti-homosexuality videos, saying the Film and Literature Board of Review and the High Court had misdirected themselves.

A majority decision, delivered by Court of Appeal president Sir Ivor Richardson, in response to an appeal by Christian organisation Living Word Distributors, refers the issue to the board for reassessment.

The court gives strong direction to the board, recommending to it, a House of Lords finding that, "The free flow of information and ideas informs political debate. It is a safety valve ... it acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice."

It also cites a European Court of Human Rights finding that, "Freedom of expression constitutes one of the essential foundations of a [democratic] society".

Without pluralism, tolerance and broadmindedness, that finding says, "there is no democratic society".

Justice Thomas's minority decision agrees with the quashing, but would not remit the matter back to the board for reassessment.

The video, Aids: What You Haven't Been Told, links Aids with homosexuality, claiming that homosexuals have "infiltrated" key public health positions in an attempt to use the epidemic to make homosexuality "respectable".

The video, Gay Rights/Special Rights: Inside the Homosexual Agenda, expresses strong opposition to homosexuals beings granted the benefit of the affirmative protection in the United State's Civil Rights Act.

At first cleared for audiences aged 16 and over, an appeal by the Human Rights Action Group led to the restriction being lifted to 18-year-olds. That group then sought and won from the board a ban on the videos as "objectionable".

An appeal against this decision by Living Word Distributors was lost at the High Court.

The Court of Appeal said the High Court erred in several respects, including in applying conditions of the Films, Videos and Publications Act that pointed to activity, rather than the expression of opinion or attitude.

It had erred in concluding that provisions of the Human Rights Act justified including sexual orientation, race and gender within the classification act's test for when a publication was objectionable.

The court found that, where there were two tenable meanings, the one that was most in harmony with the Bill of Rights must be adopted. It was incorrect to place a greater emphasis on a Bill of Rights provision guaranteeing freedom from discrimination than on another provision, guaranteeing freedom of expression.

"It follows that both the High Court and the Board misdirected themselves in law as to the impact of the Bill of Rights in this case."

Anti-gay film ban quashed

Front page article

The New Zealand Herald

(Friday September 1, 2000)

by Scott MacLeod

A Court of Appeal ruling that censors had no right to ban two videos accused of gay-bashing is being hailed as a victory for free speech - or for hatred.

The 1989 United States videos Aids: What You Haven't Been Told, and Gay Rights/Special Rights: Inside the Homosexual Agenda, were banned here in 1996.

But after a four-year legal battle, distributor Living Word yesterday won its argument that the Film and Literature Board of Review stepped outside its jurisdiction.

The ruling followed a High Court decision on March 1 that the ban was justified, and means censors will have to review their decision.

The five appeal judges said the videos had to depict sex in a way that was injurious to the public good to be banned. That element was lacking, therefore the censors exceeded their jurisdiction.

The censors unanimously found when banning the videos that they portrayed homosexuals and people with Aids as "inherently inferior." They "went beyond mere advocacy of an opinion," were riddled with misinformation and used dishonest editing and emotive propaganda to spark fears of a gay conspiracy.

The lawyer for Living Word Distributors, Paul Rishworth, said after yesterday's victory that an important principle was at stake - whether opinions could be banned.

"I think freedom of speech is worth fighting for. One doesn't have to agree with the ideas, but it's frightening that ideas can be censored."

The president of the Auckland Council for Civil Liberties, Barry Wilson, also hailed the decision as a victory for free speech.

But Auckland University Aids researcher Heather Worth said she felt that the hateful tone of the videos should outweigh the right to free expression.

"I'm particularly antagonistic towards censorship, but you have to weigh things up. Those videos are full of hatred towards homosexual women and men. They promote hatred that I think would be unacceptable if directed towards Maori."

Justices Sir Ivor Richardson, Thomas Galt, Ted Thomas, Sir Kenneth Keith and Andrew Tipping said in their decision that neither video showed any sexual images other than gay men kissing. There was discussion of deviant sexual practices that the videos linked with homosexuality, but those made up a tiny fraction of the 43-minute and 83-minute films.

It was therefore "incongruous to the point of being askew" to ban the videos as objectionable on sexual grounds.

The judges described the videos as "essentially political tracts."

During the appeal hearing, lawyers for the Attorney-General, NZ Aids Foundation, the Human Rights Commission and Race Relations Conciliator all urged that the ban should remain.

Court of Appeal quashes ban on "anti-gay" videos.

Challenge Weekly 5 September 2000

The Court of Appeal has issued a landmark unanimous decision defending the "right to freedom of expression", including "the imparting of opinions of any kind" (s. 14, NZ Bill of Rights 1990). It ruled against a ban imposed by the Film and Literature Board of Review on two Christian videos Gay Rights/Special Right and Aids, upheld by the High Court on appeal, and both were found to have "erred in law" and their decisions quashed. The Board had reached a decision "which no reasonable Board properly instructing itself, could have made."

The videos were referred back to the Board for re-classification, a decision that only Judge Thomas dissented from. He stated: "In my opinion the Board exceeded its jurisdiction [in classifying the videos] and the High Court was in error in not reaching that conclusion." He could see no point in remitting the matter back to the Board for it to only confirm that it lacks jurisdiction.

The Appeal Court unanimously confirmed the Board's lack of jurisdiction, for the content of the videos were found not to fall within the "objectionable" categories "such as sex, horror, crime, cruelty, or violence" as required under section 3(1) of Classification Act 1993. The Board had failed to link the subject matter at the "gateway", that is, sex or a matter akin to sex, with the test which is provided for determining whether that subject matter is "objectionable": namely: is it "injurious to the public good"? The High Court erred in concluding that the reference to s21(1) of the Human Rights Act in s3(3)(e) of the 1993 Act justifies including "sexual orientation" within the s3(1) "gateway".

The fundamental error on the part of the High Court and the Board was in treating s19(1) of the Human Rights Act (dealing with the rights of everyone to "freedom from discrimination") as prevailing over section 14 of the Bill of Rights. "Gay"- activists who hailed the video ban as a "victory marking the culmination of a long-term political strategy" will be very disappointed with the decision. The messages of both videos contain clear calls to the Christian community to treat homosexuals with compassion and love and each contains an opening "Warning": "Viewer discretion advised".