Is there really uncertainty about the right to book a venue?

By Dr. Roderick Mulgan | FSU Chairperson

Do the owners of public meeting venues have to tread a “difficult line” between the right to free speech and “wider community needs”?  A recent opinion piece in the Herald claimed so.

Written by two serious lawyers, it purported to examine the situation faced by venue owners who want to ban speakers with unfashionable views when lawyers weigh in and say they can’t. 

The piece claimed that the “situation” is an issue for “charitable, public, and private organisations”. Except it isn’t.

There is no legal quandary for people who operate private meeting spaces. They can decline whoever they like. The issue, such as it is, only applies to publicly owned facilities, like a Town Hall. 

It is currently fashionable to assert that some points of view make hearers “unsafe”.  Recent judgements of the higher courts, cited in the article, have established that this thinking does not translate to censorship of such views in  public meeting spaces. Yet the piece goes on to encourage the use of ‘health and safety’ as an alternative cancellation weapon. It implies this tactic can work if a policy is written around it. 

The two lawyers suggested a venue operator that “regularly deals with vulnerable members of the community who require protection” could defend a decision to turn away a booking if its policy said so. This is not the law. There is no legal principle from the recent cases to justify the claim that some groups are so vulnerable that another group can be banned from public spaces, or prohibited from expressing unwelcome views in them.  

A number of councils have tried that argument – seeming to believe that unwelcome views pollute the walls and furniture, making the space unsafe for subsequent use by sensitive folk.  The courts have consistently found against them.  An appeal to people claiming to feel vulnerable may get likes on Facebook, but there is no legal scope to write that up into a policy for running the Town Hall.  

The  recent judgements unfortunately do leave uncertainty about how much a venue controller must do to resist what is called the “thugs’ veto”, where hostile people threaten actual violence.  It is clear that venue managers can take reasonable steps to reduce risks to  physical safety. The hall can be cleared for a bomb threat.  Threats of disturbance may suffice for cancelling a booking, but a “heavy weighting” must be given to freedom of expression. Most counter protests are more rationally managed by recourse to the police than cancellation.   

Our forebears have been here many times before. Priests and princes and vain governors of every stripe have claimed that  that dissent is dangerous, and the law should suppress it. The duty of sensible people is to push back and declare that if ideas are so fragile they can’t stand scrutiny, then scrutiny is the best thing for them. The law on ideas is clear. The New Zealand Bill of Rights 1990 protects the right to both give and receive opinions “of any kind” and various councils have squandered their rates in the last few years finding that out.  

Instead of encouraging public venues to try to craft cunning censorship policies,  lawyers should be explaining why such attempts will waste ratepayer money in court. They should explain that public venues have a duty to uphold and to protect free speech. 

To eliminate the uncertainties left by our Supreme Court, that appear to be tempting lawyers to encourage evasion of the NZ Bill of Rights Act,  the Free Speech Union has drafted the ‘Protection of the Freedom of Expression Bill’, along with former District Court Judge Dr. David Harvey. This Bill provides that all Kiwis will have access to publicly funded venues without spurious ‘health and safety’ claims being weaponised to silence them. This legislation was recently picked up by New Zealand First as a Member’s Bill - the appropriate next step to see free speech upheld in our publicly funded venues.

Every society has worked out at an early stage that sorting out life’s issues means debate. What once happened around campfires now happens in universities and on street corners and in public halls. There have always been attempts by those in power to ban certain topics and to punish those who challenge them but progress means that some people can say things that other people seriously dislike. That is how it is supposed to happen. 

Thanks to the robust laws we enjoy, and people with the wherewithal to enforce them, it still does.

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  • Nadia Braddon-Parsons
    published this page in Blog 2024-10-10 10:52:49 +1300

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