Eroding Freedom of Expression

A Continuing Story

This piece appeared on my blog “The ITCountrey Justice” in October of 2022. Since then the Department of Internal Affiars has released a discussion paper about digital media regulation and the establishment of a Regulator that is chilling for freedom of expression. This is part of a continuing trend in New Zealand to restrict contrary points of view and channel the narrative. The DIA proposals are part of a continuing trajectory of which the events and actions described below are a part. I have updated the article slightly to reflect a new honorific for the former Prime Minister.

Introduction

There is an ambivalence in New Zealand towards freedom of expression. Freedom of expression is guaranteed in the New Zealand Bill of Rights Act 1990. It guarantees not only the expression of information – the outward flow – but also the receipt of information - the inward flow.

The ambivalence has been growing. Freedom of expression has been pushed to the margins. Although, with a few exceptions, the Government has not actively or outwardly restricted freedom of expression it has nevertheless narrowed the scope of what may be considered acceptable.

The narrowing of scope has been led by the former Prime Minister, Ms. (now Dame) Jacinda Ardern. Dame Jacinda is a trained communicator in that she holds a degree of Bachelor of Communication Studies (BCS) in politics and public relations.

Public relations is the practice of managing and disseminating information from an individual or an organization - in her case the Government - to the public in order to influence their perception. Dame Jacinda has done this very successfully. But in managing and disseminating the Government message she has been very careful to ensure that contrary views, criticism and contradiction are pushed to the sideline, so that those views are diminished and devalued and are of no account.

In this piece I trace the trajectory of the erosions of freedom of expression and the growth of ambivalence towards the expression of contrary opinions. I start with the Christchurch Call – perhaps a curious and non-contentious beginning but one that, as it has progressed, has chilling consequences for freedom of expression. I follow with the “sole source of truth” declaration and then embark upon an excursion into the validation of discrimination as an example of the blasé and contemptuous attitude of the Prime Minister to those who chose not to be vaccinated and who, by implication, express a contrarian perspective. I shall conclude with the latest example of Dame Jacinda’s erosion of the freedom of expression when she addressed no lesser a forum than the General Assembly of the United Nations.

 The Christchurch Call

I have written elsewhere about some of the problems with the Christchurch Call. The call to regulate content online is a difficult one as I have pointed out elsewhere.  I see this as a starting point for what appears to be an ambivalence or a relativistic approach towards freedom of expression.

The Christchurch Call is a community of over 120 governments, online service providers, and civil society organisations acting together to eliminate terrorist and violent extremist content online. With that objective there can be little dispute. The difficulty is that extremist content, abhorrent though it might be, should still be allowed a voice as long as it does not advocate imminent harm to people or property. For a discussion of assessing whether expression should be stifled or censored see here.

The Christchurch Call has noble goals but there are a number of concerning features about it.

It is government led – the principal drivers for the Call are national governments. Whilst preventing terrorism is necessary for the safety of civil society, such projects may develop “mission creep” and although there is a recognition of the importance of the freedom of expression, “extremism” or “extremist speech” are slippery concepts and depend very much upon the eye of the beholder and the ear of the listener.

As an example of the issue of “mission creep” the scope of the areas of concern for the Call are expanding to include algorithms, radicalization and gender. The targets of extremism have been expanded to women, LGBTQIA+ communities, youth, and intersectional communities – quite a reach beyond the terrorist lone wolf shooter or bomber and a clear indicator that what the Call is really about is “hate speech.” I have discussed whether “dangerous speech is a better term and how it should be dealt with here and here.

The Call seeks to achieve a “safer Internet” and has enlisted not only national governments but private organisations and some of the tech platforms.

The Call states that

“the future of the internet and the future of our free, open, societies are intertwined. As we look ahead our legacy must be a free, open, secure and interconnected global internet as a force for good, a place where human rights are promoted and upheld and where technology contributes to social mobility and empowerment for all.”

These are laudable goals but the subtext is one of overall control and more importantly overall control of a communications medium. And such control must necessarily impact upon freedom of expression.

The final paragraph of the 2022 Communique issued by Dame Jacinda and M. Emmanuel Macron is a chilling example of the possible “mission creep” to which reference has already been made.

“Ahead of the Paris Peace Forum, New Zealand, France, and other Call community members with an interest will consider some of these related issues – including disinformation, harassment, abuse, and hatred online, and issues affecting youth – to understand how we might apply what we have learned working on the Christchurch Call, where we can support and engage on related initiatives such as Tech for Democracy, the Summit for Democracy, the Freedom Online Coalition, the Declaration for the Future of the Internet, the Aqaba Process, the Global Partnership for Action on Gender Based Online Harassment and Abuse, the Global Partnership on Artificial Intelligence, and the International Call to Stand up for Children’s Rights Online, and where there is multistakeholder interest in new work programmes separate to the Call.” 

Clearly the Call methodologies and approach are intended to expand to other areas and issues that are distinct and separate from the central goal of terrorism and extremist content that advocates violence.

This may not amount to a direct assault upon freedom of expression but it demonstrates the willingness with which State and Government actors and representatives are prepared to erode and whittle away freedom of expression from the margins. The use of generalized language such as “extremist” without a clear definition means that, as Humpty Dumpty said in Alice Through the Looking-Glass a word “ means just what I choose it to mean—neither more nor less."

The Single Source of Truth

On 2^nd September 2020 the then Prime Minister of New Zealand, Dame Jacinda Ardern said to the Parliament

“I want to send a clear message to the New Zealand public: we will share with you the most up-to-date information daily. You can trust us as a source of that information. You can trust the Director-General of Health. For that information, do feel free to visit at any time—to clarify any rumour you may hear—the covid19.govt.nz website. Otherwise dismiss anything else. We will continue to be your single source of truth. We will provide information frequently. We will share everything we can. Everything else you see – a grain of salt.”

Although this pronouncement was made in the context of information about the COVID-19 pandemic it is clear that it goes much further.

The levels of meaning that can be drawn from this are as follows:

• You don’t need any other information – only ours

• Don’t listen to anyone else on the topic – dismiss anything other than our messaging – take it with a grain of salt

• We are the single source of truth – an echo of Orwell’s Ministry of Truth

• If anyone else expresses a point of view dismiss it (effectively silencing contrary points of view)

This statement discourages any sort of debate, any sort of discourse. Although the freedom of expression protected by the Bill of Rights Act 1990 guarantees the right to impart and receive information, the suggestion that any other person may be able to contribute to the debate is eliminated and the right is negated by the suggestions that no other information is needed apart from that of the State whose pronouncements are “truth” and any dissent should be dismissed.

It is certainly dangerous to the governed in a democracy for any politician, let alone a Prime Minister, to declare that they, or their Government, are a single source of truth.

The Validation of Discrimination

Once the vaccination programme got underway in New Zealand Dame Jacinda endorsed the emergence of a de facto two-tier society.

During a video interview, the PM admitted that the then rules granted vaccinated citizens more freedoms. Asked by a journalist from the New Zealand Herald who asked:

“You’ve basically said, and you probably don’t see it like this, but two different classes of people if you’re vaccinated or unvaccinated. If you’re vaccinated you have all these rights.” Ardern responded enthusiastically, nodding along as she replied: “That is what it is.” She continued:

“If you are still unvaccinated, not only will you be more at risk of catching COVID-19, but many of the freedoms others enjoy will be out of reach. No one wants that to happen but we need to minimize the threat of the virus, which is now mainly spreading amongst unvaccinated people.”

This from a a self-proclaimed believer in the “values of human rights, social justice [and] equality”

What was concerning was that there were many who actually endorsed the two-tier approach, creating division and hostility against those who were unvaccinated or chose not to be. Animus against anti-vaxxers and contrarians began to grow.

Although this may not have a lot to do with freedom of expression the divisiveness that the two-tier approach caused had the effect of marginalizing anyone who expressed a contrary view.

Misinformation and Disinformation

Coincidentally there developed over the pandemic emergency a greater use of two terms – misinformation and disinformation. These became predominantly news media shorthand for any statements that departed from the received wisdom of the government.

Misinformation meant information that misled. Disinformation was false information that the disseminator intended to mislead – in other words lies.  The problem was and still is that those words lack certainty. It seems that they mean what people using them want them to mean and consequently they have taken on a perjorative aspect.

In June 2021 the Classification Office, headed by the then Chief Censor Mr David Shanks, released a paper entitled “The Edge of the Infodemic: Challenging Misinformation in Aotearoa”. It argued that misinformation\disinformation (neither term defined in the paper) was a problem, that it came primarily from Internet based sources, that when people rely on misinformation to make important decisions it can have a harmful impact on the health and safety of communities and can also affect us on a personal level, contributing to anxiety, anger, and mistrust.

It argues that that we should be looking at solutions that work to increase access to good information; lower the volume of misinformation; improve resilience to misinformation; and build levels of trust and social cohesion that can serve as a counter to the more harmful effects.

That this document emerged from the Classifications Office is something of a concern. The Classifications Office is involved in the administration of the Films, Videos and Publications Classification Act 1993. That Act allows for censorship of films, videos, publications, and online content in certain limited and restricted circumstances.

It seemed to be part of a concerted effort on the part of the Classifications Office to expand the scope of censorship and information control currently enjoyed by the Classification Office – another example of “mission creep”.

One of the issues that features in the paper is the importance of social cohesion. At first glance this concept is unremarkable. It suggests societal togetherness in the pursuit of common goals.

The problem is in what lies beneath the term. I would suggest that what it really suggests is conformity not so much in behaviour but in thought. The term implies collective agreement or acceptance of a particular narrative – in this case the sole truth that flows from the State.

Thus any expression of disagreement or dissent is seen not only as an affront to the ”truth” propagated by the State but as an assault or an attempt to erode the monolithic structure of “social cohesiveness” or the complacent conformity that the State requires.

Lest it be thought that I am focusing on a single example – “The Edge of the Infodemic” paper - at an Otago University conference about “Social Media and Democracy” in March 2021, Mr Shanks told the conference the way we regulate media is not fit for the future.

“We can be better than this. I think there’s some very obvious moves that we can do here to make the current regulatory system and framework more coherent for a digital environment.” [1]

Before that, in October 2019 Mr Shanks claimed that an entirely new media regulator may be required.[2]

At the Otago University Conference were two representatives of the Disinformation Project - the Director, Ms. Kate Hannah and Dr. Sanjana Hattotuwa. The Disinformation Project has been observing and analysing open source, publicly available data related to Covid-19 mis- and disinformation on social media, mainstream media, and in physical and other digital forms of information and knowledge dissemination.

From August 2020, the Project expanded its brief (yet more “mission creep”) beyond Covid-19 to consider mis- and disinformation ecosystems in New Zealand, including the seed and spread of ‘dangerous speech’, hateful expression, and criminal behaviour. The scope of the study involved looking at global trends, themes, narratives, and actors who influence online harms in New Zealand.

Although the Disinformation Project is not a State Actor, its commentary and thrust is directed towards material that is considered harmful because it is contrary to the received wisdom that is a part of the Government message. In this way, perhaps unintentionally, the Disinformation Project becomes complicit in the Government as the sole source of truth narrative.

To further emphasise the role of the Disinformation Project, the focus seems to have shifted from mis/disinformation about COVID-19 issues into the wider political scene. Dr Hattotuwa of the Disinformation project in commenting on the role of Voice for Freedom observed that the group skilfully avoids attempts to regulate mis and disinformation and suggests that Voice for Freedom represents a threat to democracy[3] Clearly from this comment the Disinformation Project is suggesting that there should be some form of regulation of mis or disinformation. In the meantime, as Stephen Judd of Fighting Against Conspiracy Theories Aotearoa (FACT), commenting upon contrarian candidates for local body elections, suggests

“People who hold a set of beliefs about the legitimacy of our institutions, and who are conspiracy theorists and who hide that because they think it would harm their chances of being elected, aren’t operating in good faith.

“So, one of the best things we can do is provide more publicity and exposure to candidates because that ultimately is what leads the public to have a fair view of what they are about.”

Thus we have developing a number of strands that seem to be directed towards suppressing or marginalizing dissent or disagreement. Although the Disinformation Project casts a sinister shadow over the terms, and although the Classification Office may see misinformation and disinformation as having potential objectionable qualities, the reality is that every expression of disagreement or dissent, every expression of a contrary view or opinion, every expression of a challenge to the State message is a part of the normal discourse of society. Disagreement is a fundamental aspect of being human. We all have differing points of view, beliefs, values and standards. And it is part of the democratic tradition that we should be able to express those views.

Of course, associated with that is the fact that those who disagree with us must have the right to express that disagreement. And so the cacophony of debate and the exchange of points of view takes place.

It may be that some points of view are strongly contrarian. Some points of view may be wrong-headed or fly in the fact of reason. But they have a right to be expressed and the speakers have a right to be heard in the same way that those to whom they are speaking have a right not to listen.

The problem is that from the State’s point of view, disagreement and dissent are being treated as inimical to the interests of the State. No longer can dissent be tolerated. It is seen as a weapon of opposition – which it frequently is – but so much so that such opposition is characterized as a war with the State.

One of the justifications for the firm line that has been taken by the State arises from the events of February – March 2022 – the Wellington Protest.

The Wellington Protest

The Wellington Protest and the occupation of the grounds of Parliament House in February-March 2022 represented the culmination of a number of contrarian protests against COVID 19 restrictions that had been taking place over the preceding months. The occupation and its violent end have been well covered in the media and do not need rehearsing here. Many people supporting the protesters drifted on and off the site but once the protest had been dispersed it became a symbol for everything that was bad about mis/disinformation and the expression of contrarian views.

Stuff presented a documentary – Fire and Fury – which represented the protest and those involved in a very unfavourable light. I have already commented on the unbalanced approach taken by the documentary, and that it seems to be an example of agitprop but it demonstrates a lack of tolerance about contrarian speech that seems extraordinary for a news media outlet that should be presenting a more balanced view.

The contrarians would suggest that perhaps aided and assisted by a significant influx of Government money to support mainstream news media and guard against mis/disinformation that Stuff and its opinions have been bought and sold. I could not comment on that for I have no evidence to support such an assertion.

However, from the Stuff perspective, the Wellington Protest and the Fire and Fury documentary has become a weapon with which to beat contrarians. Thus those who were standing for local body positions recently who had attended the Protest were identified without more – no examination of their policies; no opportunity for them to provide an explanation for their actions; no evidence of any sort of balance at all. Yet the article making some of these assertions, together with another which identified those who were and were not successful in local body elections were anything but balanced and afforded the contrarians no opportunity to reply or comment.[4] Perhaps the reason for this is that the authors were wary that to ask for comment meant giving the contrarians a platform.

The Wellington protest added fuel to Dame Jacinda’s approach to freedom of expression. She claimed, without identifying any evidence, that there was foreign influence involved in the misinformation. She said:

As we go through a process of accessing what is it that has allowed the growth of misinformation in this country and how do we address that, we will be at pains to ensure that it never becomes an excuse for the violent acts that have happened.

This provides a backdrop to Dame Jacinda’s speech to the United Nations.

The War on Disagreement

The “war with the State” approach to dissent and to disagreement was epitomized by Dame Jacinda, speaking at the United Nations in September 2022.

At the U.N. General Assembly on Friday, Ms. Ardern announced a new initiative "to help improve research and understanding of how a person’s online experiences are curated by automated processes," saying the work, done in partnership with companies and non-profits, will be "important in understanding more about mis- and disinformation online - A challenge that we must as leaders address."

It cannot be co-incidental that there had been a meeting of the Christchurch Call participants in New York shortly before Dame Jacinda’s speech.

In the course of the speech she made reference to the way that contrary speech can inhibit or frustrate progress in the implementation of Government policy.

She asked:

"After all, how do you successfully end a war if people are led to believe the reason for its existence is not only legal but noble? How do you tackle climate change if people do not believe it exists? How do you ensure the human rights of others are upheld, when they are subjected to hateful and dangerous rhetoric and ideology?"

She then moved on the discuss how speech and contrarian speech can be used as a weapon. By characterizing the “weapon-like” qualities of speech she shifts the focus from speech as a means of communicating contentious ideas to speech as a contrarian weapon against established thinking or government objectives.

Of course, this characterization of speech demonizes the speaker. It suggests that rather than a means of resolving difference and reaching consensus – or even recognizing that Government policy may not be the desire of the governed – there is a war between contending ideas. And that implies that at the end of the war there must be a winner. As far as Dame Jacinda is concerned, that winner must be the State.

Such a perspective completely ignores that the fact that governments govern with the consent of the governed. If the majority of the governed do not consent, is it suggested then that they are at war with their government?

She then expanded on the “weapons of war” metaphor, at the same time criticizing those who engage in contrarian speech.

"The weapons may be different but the goals of those who perpetuate them is often the same. To cause chaos and reduce the ability of others to defend themselves. To disband communities. To collapse the collective strength of countries who work together,"

But debate is the answer to contrarian speech. If speech is a weapon that may be used in a disruptive sense, that disruption can be answered by counter speech. At least with speech there is an equality of arms, and Dame Jacinda, as a graduate in communications studies, would be and is well skilled in massaging the message.

But she chose a different path. Without explicitly saying so she suggested that there were methods of countering speech that were other than debate, and clearly the subtext of the remarks that follow is directed towards the suppression of contrarian speech.

"But we have an opportunity here to ensure that these particular weapons of war do not become an established part of warfare. In these times, I am acutely aware of how easy it is to feel disheartened. We are facing many battles on many fronts…But there is cause for optimism. Because for every new weapon we face, there is a new tool to overcome it. For every attempt to push the world into chaos, is a collective conviction to bring us back to order. We have the means; we just need the collective will."

This is the language of authoritarianism although it is expressed in more mellow terms. Given Dame Jacinda’s communication credentials she is able to make authoritarianism look acceptable. But it is, nevertheless, typical of the mindset of the tyrant.

Dame Jacinda is possessed of a high sense of the righteousness of her cause. She does not debate ideas. She rejects them or refutes the premises of opposition without engaging in debate. She therefore avoids confronting the uncomfortable reality that she may be wrong. And by rejecting and refuting she adopts an air of superiority that views dissent as evil and, because it has become “weaponized” it is too dangerous to allow.

It is perhaps evidence of that sense of righteousness that Dame Jacinda went to the UN and called upon the General Assembly, looking for support for her cause. She called upon the nations present to exercise their collective power to deal with this new weapon of war – contrarian speech.

But deeper than that what Dame Jacinda is talking about is ideas. What she is concerned about, what has been “weaponized” is the way that those ideas have been expressed. Ideas that conform with hers are benign. Ideas that conflict with hers must be stamped out. The days of debate are over.

Her speech focused on the alleged scourge of “mis and disinformation online”.

We must tackle it, she said. She acknowledged some people are concerned that “even the most light touch approaches to disinformation” could come across as being “hostile to the values of free speech”.

She is certainly right there. Her approach is indeed hostile to the values of free speech.

When she moved into the “weapons of war” metaphor she was essentially saying that war is speech. Words wound. Ideas kill.

Politicians and those who support the “official position” and who wring their hands over “misinformation” or “disinformation” are usually just talking about beliefs they don’t like. Mis\disinformation are words that are rendered meaningless by misuse.

Dame Jacinda gave climate-change scepticism as an example of one of those “weapons of war” that can cause “chaos”. “How do you tackle climate change if people do not believe it exists?” she asked.

Those who critique climate-change alarmism, those who call into question the ecolobby’s claims that billions will die and Earth will burn if we don’t drastically cut our carbon emissions, is an entirely legitimate political endeavour, contrarian though it might be. However, in treating it as a species of Flat Earthism, as “disinformation”, the new elites seek to demonise dissenters, to treat people whose views differ to their own as the intellectual equivalent of warmongers.

Activists, whose hype about the end of the world could genuinely be labelled misinformation, are never branded with that shaming word. That’s because misinformation doesn’t really mean misinformation anymore. It means dissent. Deviate from the consensus on anything from climate change to Covid and you run the risk of being labelled an evil disinformant.

Indeed, one of the most striking things about Ms. Ardern’s speech was her claim that if the elites ignore “misinformation”, then “the norms we all value” will be in danger. But for her it is dissent that is the enemy. Ms.Ardern does not want a single voice raised against her.

This is the most common cry of the 21st-century authoritarian – that contrarian speech can have a destabilising and even life-threatening impact, especially if it concerns big crises like climate change or Covid-19.

So “climate deniers” are a threat to the future of the human race and thus may be legitimately silenced. “Lockdown deniers” threaten to encourage the spread of viral infection and thus may be legitimately gagged. The spectre of crisis is cynically used to clamp down on anyone who dissents from the new global consensus.

To see how authoritarian the desire to clamp down on “misinformation” can be, it is worth considering other world leaders who used the platform of the UN to call for tougher controls on speech. Muhammadu Buhari, the ruler of Nigeria, focused on his nation’s “many unsavoury experiences with hate speech and divisive disinformation” and joined the calls for a clampdown on the “scourge of disinformation and misinformation”. Russia’s Foreign Minister, Sergey Lavrov, bemoaned the “disinformation” against his nation. Those supporting Dame Jacinda for standing up to “fake news” are implicitly cheering Buhari and Lavrov, too. They are as one with her when it comes to chasing “misinformation” from the public sphere.

Freedom of expression isn’t only threatened by obvious strongmen – like the rulers of Nigeria or the theocratic leaders of Iran. Dame Jacinda’s UN speech exposed the iron fist of authoritarianism that lurks within the velvet glove of liberal kindness.

Conclusion

In this piece I have mapped a trajectory of gradual erosions of freedom of expression in New Zealand. It is the job of an historian to look at the evidence and interpret it. The evidence in the matter or erosions of freedom of expression in New Zealand starts with the Christchurch Call. The initial target was discrete although the widening of the scope to include extremist speech was modified by the word “violent”.

It was at this time concerns were expressed about “hate speech” although that particular project, signalled by the Government as a matter of concern, appears to be of lesser importance than it was following the events of March 2019 and the Royal Commission Report.

A shift in focus came with the “single source of truth” comments by Ms. Ardern. Although these were outwardly intended to inspire confidence in the truth of the Government messaging, it nevertheless marginalized expressions of contrary opinion and in that respect ramped up the anti-contrarian messaging, consigning it to a “non-truth” category.

The messaging about truth, “non-truth” and the issues of mis and disinformation were picked up by various agencies such as the Disinformation Project and elements of the mainstream news media, reinforcing the Government messaging about the potential damage to Government programmes and policies.

The Wellington Protest fuelled Ms Ardern’s speech at the UN which concludes this discussion and it tells two stories. The first is the chilling of freedom of expression. The second is evidence of the chilling of freedom of expression. International news reports have expressed concern and indeed outrage at Dame Jacinda’s hostile attack on freedom of expression[5]. Has there been such concern expressed here in New Zealand by a news media that is the beneficiary of many millions of Government funding? The rest is silence.

Postscript

The silence has been broken with the Department of Internal Affairs Discussion Paper on Safer Online Services and Media Platforms. The move towards restricting speech, expression and contrary opinions continues. As Thomas Jefferson said in 1817 “eternal vigilance is the price we pay for liberty”. Without that vigilance, our liberties will gradually vanish. We must be continually aware of the gradual erosions that are taking place