Legal Beagle by Graeme Edgeler

28

All of these things are quite like each other

The following scenarios, based on cases that have made the news, or which I'm aware of because I've been around the courts for a while have something important in common:

  • A group of drunk high school students scale a fence at a holiday home to use a spa pool, drink alcohol, and generally make a mess of the place: trampling all over the plants and breaking glass bottles.
  • A sex offender climbs through a bedroom window looking for a victim. 
  • Peace protesters cut through the external fence of a spy base to deflate the dome shielding a satellite dish.*
  • A reveller at popular beach on New Year’s eve rifles through someone else’s tent looking for alcohol.
  • Greenpeace activists climb aboard an oil drilling ship, using bolt cutters to get access to drilling tower, staying there for four days in a protest.
  • Not realising there’s a metal grille behind it, someone uses a crowbar to break a shop window in the hopes of stealing cigarettes.
  • Someone climbs onto Hikitia (the crane ship near Te Papa), to nab a ‘souvenir’.
  • Someone purchases a marijuana joint from a drug dealer who is using the wall of an enclosed car yard to avoid being seen. (ok, this one hasn't happened yet, that I know of.)

If you’re not new here, you’ve probably guessed. These are all examples of the criminal offence of burglary, listed here in light of the ACT Party’s release of a three strikes for burglary policy.

I oppose the policy, but to be honest, if ACT limited it to burglaries of private dwellings, and applied the same protections that are in the three strikes system for violent offending, I probably wouldn’t. I wouldn’t campaign for it exactly, but a three year prison term is pretty standard for a repeat burglar of the type ACT is campaigning over, and may even by a little on the low side. The fact that it’s a non-parole period means there’s an increase, but it’s not a particularly large one, and parole is still available if the nominal sentence is higher than 3 years, which is likely.

But, with the expansion of the burglary offence, encompassing a far greater range of offending than previously, any law prohibiting justice in those edge case is a bad law, and should be opposed.

* I realise the burglary charge faced for the Waihopai protest resulted in an acquittal. A law change means the defence relied upon at that trial would no longer be available in the circumstances it was used.

53

John Banks: what next?

Justice Heath has released his decision on John Banks' application for judicial review (.pdf), which, as anticipated, did not take long.

There are a few points of note. The removal of the trial into the High Court has been confirmed, and it has been indicated that a trial may be able to be heard in the first quarter of next year. This may depend on whether Banks continues with a jury trial, or tries to have it set down before a judge-alone. Jury trials take longer, and must also take place in courtrooms that have space for a jury, so are more difficult to schedule at shortish notice.

In the judicial review itself, Justice Heath accepts that there were some errors in Judge Gittos's decision, but he simply didn't think they made a difference.  As well as concluding that the "truly exceptional circumstances" needed to succeed in a judicial review of a commital decision just weren't present, Justice Heath also looked through the evidence that the prosecution has presented. And he was of the view that there was enough evidence for there to be a trial. A jury might believe the evidence of Kim Dotcom and others about the circumstances of the donations, and agree that Banks knew he wasn't declaring a donation, and based on that might find Banks guilty of the offence of knowingly filing a false return. That's all you need.

John Banks' next step will probably be an application to have the charges dismissed under s 347 of the Crimes Act. This will be his last chance to have the prosecution ended before trial. However, it strikes me as unlikely to meet succeed. While Justice Heath wasn't considering a 347 application, his ruling pretty much addresses the arguments likely to come up in one if an application is made. And while a Judge hearing a 347 application can look at new evidence, it is difficult to see what further evidence might seriously be advanced on behalf of John Banks that would alter this conclusion that a jury might listen to the prosecution evidence and believe it

Of course, they might not. Or they might believe it, but also believe enough of the other evidence presented to have reasonable doubt. Those are matters for trial. A conviction is far from certain, but John Banks standing trial next year pretty much is.

And whatever the result of the trial, that it will occur without major complications will hopefully give Police enough of kick to consider advancing a few more of the investigations they still have outstanding from the 2011 general election.

19

Not burglary?

Yesterday the Otago Daily Times carried a story (reprinted by the New Zealand Herald) of a bunch of high school students who appear to have gotten drunk, and decided to have a party in the grounds of someone's holiday home, using their spa pool, urinating, and breaking bottles.

This probably not a unique occurrence, nor a particularly newsworthy one outside of Queenstown, but it gives me a good example of a concern I expressed in an earlier post On Burglary, or: Dropping the Ball.

Police say they are investigating the students with a view to laying charges of being unlawfully on property (maximum penalty 3 months prison, or a $2000 fine). That's probably the right level of offence, but there is a problem with it. An element of that offence is that you have to be "found" on the property, and it appears these students weren't. There's also a defence to the charge if they can prove that they weren't intending to commit a crime (but more on this later).

The problem I have with these facts, is that following recent changes to the Crimes Act, what we have isn't being unlawfully on property, but burglary (maximum 10 years imprisonment). Burglary used to be entering (or staying) in a building (which includes an enclosed yard) with the intention to commit a crime. It's now entering (or staying) in a building (which includes an enclosed yard) with the intention of committing an imprisonable offence. And wouldn't you know, but breaking glass (which was not a "crime" under the old law) is an imprisonable offence under the Litter Act 1979 (maximum penalty 1 month imprisonment, or a $7500 fine).

With the law change, the majority of factual situation where someone could properly be convicted of being unlawfully on property (which includes buildings, ships, and enclosed yards) will now also constitute burglaries. Possession of a weapon during these burglaries (perhaps a broken bottle?), will mean there's a strike-eligible offence of aggravated burglary.

Burglary charges probably will be very rare, and aggravated burglar charges rarer still, but there was surely a better way of amending the definition of burglary than one which opens up the intention requirement to all imprisonable offences. Most importantly, we should not have to rely on police discretion to minimise the consequences of overly broad law-making.

37

Q&A: John Banks' judicial review

John Banks’ judicial review of the District Court decision committing him for trial on a charge of knowingly filing a false election return for the 2010 Auckland mayoral election is being heard in the Auckland High Court on Wednesday.

Why is John Banks judicially reviewing the committal decision?

Well, Banks would like the prosecution to be over (if it goes to trial, it will be in the run-up to the election), and getting it thrown out for insufficient evidence is one way of doing it.

But why not just appeal the decision?

In criminal cases, you can only appeal certain types of decisions. They’re individually listed in legislation, and this one isn’t there. He is judicially reviewing, because that is what you can do if an inferior court (a court that ranks lower than the High Court) makes a decision you don’t like. It’s not as easy as appealing, but it’s an option.

How does a judicial review differ from an appeal?

In quite a few ways (an appeal would be a criminal case, a judicial review is a civil case) but one is particularly important: in a judicial review, the “relief” (what the judge orders if you’re successful), is discretionary. Even if you prove there was an error, the High Court can simply decide not to give you what you ask for.

Is it common to judicially review a court?

Well, it’s not uncommon. Search on any database of New Zealand court decisions (there’s a free one here). If a District Court is named as a party, it’s probably a judicial review. Most of the time, however, you won’t judicially review a court decision, because there are a lot of things you can appeal instead, or you may just go to trial, and if necessary, run the arguments you wanted to at an appeal of the final decision.

What about judicial review of committal decisions?

These are rare. Justice Heath, the High Court Judge who is dealing with the judicial review on Wednesday, has released a minute to the parties (more on this later), in which he draws their attention to a 1995 decision of the Court of Appeal, where the Court of Appeal dealt with an appeal from a judicial review of a committal decision, and notes that there are very narrow grounds of which an appeal will succeed.

What is Banks’ argument?

His main argument is that the Judge Gittos simply got the evidence wrong. A judge is supposed to decide a case based on the evidence, and Banks’ lawyer, David Jones QC, says that Judge Gittos made findings that simply weren’t available. For example, the Judge mentions the (in)famous helicopter trip that was arranged by Kim Dotcom to have Banks visit his Coatesville property for lunch. The judge describes the evidence of Dotcom explaining how the two discussed funding for Bank’s mayoral campaign, and two cheques were handed over. He argues that even though Banks and Dotcom disagree on things, they agree that the meeting with the helicopter trip had no mention of a campaign donation, and that the money wasn’t mentioned until a different meeting, months later, which Banks drove to by car. He says that there isn’t even an allegation that any cheques from Kim Dotcom or Mega were handed to Banks personally, at either meeting.

Why would this be important?

Well, if Banks was personally handed cheques, that would be really good evidence that he must have known that Dotcom and/or Mega had made donations to his campaign, so they couldn’t be declared anonymous. But it may not be crucial.

What happens if Banks convinces the High Court the District Court made a mistake?

There are a number of options. The usual result in a successful judicial review is that you order the decision-maker to make the decision again. On a case like this, this is unlikely. Rather, the High Court would probably make the decision itself.

What are the options?

The High Court might decide: you’re right, the District Court argument was completely wrong, and there’s no way there’s enough evidence for us to spend court time on a trial.

Or it might decide: you’re right, the District Court argument was completely wrong, but there in fact was enough other evidence that was before the District Court for this to go to trial.

But you said judicial review of committal decisions are only on very narrow grounds!

They are. It might also decide: actually, this is the type of case where the Court of Appeal was saying judicial review shouldn't be used, and I’m staying out.

Well, what are you picking?

I’m always open for a Court to surprise me, but I think Banks’ chances of winning this case on a judicial review are low. The types of cases where judicial review of a committal decision will succeed are process ones, and Banks simply isn’t arguing anything like ‘the judge should not have committed me to trial because one of the witnesses is his brother-in-law’.

This type of case is pretty much exactly the type of thing the Court of Appeal was warning us about. A decision committing someone to trial doesn’t finally resolve anything (unlike say, a judicial review of a decision about where a mine can be built). Banks hasn’t been convicted of anything, and being committed for trial doesn’t mean Banks stops being a member of Parliament, so even if the Court agrees there’s a problem, I suspect it will just exercise its discretion to stay out of it.

Any other reasons?

When the judge issues his minute, he included a couple of suggestions for the parties. First, he noted that he thought the criminal case was the type of trial that was important enough for the trial to happen in the High Court. He asked the two sides whether they agreed, and my understanding is that they did. I suspect the order has already been made. The judge doesn’t give a reason, but I suspect that the consequences of conviction (Banks ceases to be an MP) will have played a part. An appeal doesn’t affect the automatic vacating of the seat, so you want to do what you can to ensure that as few mistakes happen as possible in the trial.

What does that mean?

The High Court hears all judicial reviews. If it is also the trial court, then it can also exercise the powers it has under the criminal law, which gives the Court, and Banks, another option.

If someone thinks that there isn’t enough evidence for them to be tried, they can ask the trial court to throw out the charge. This is more common in cases where the committal occurred without an assessment of the evidence, but even if (as in this case) the decision to commit to trial involved an actual decision after hearing evidence, you can simply ask the trial court to look again.

This is another reason why I think that the High Court won’t uphold Banks’ judicial review, even if it thinks he is right: he has another – much simpler – option. The Judge can simply look at the evidence himself and decide whether there is enough evidence on which a jury could convict, which is the same test as was applied by Judge Gittos.

What chance is there?

There’s definitely a chance, just as there was a chance before Judge Gittos. It’s still not an easy test for Banks to win on: it basically assumes that all the prosecution evidence that’s not completely unbelievable is true, and then asks: accepting that all the prosecution evidence is true, would there be enough for a conviction?

This sort of application – known as a section 347 application – is common at trials. A witness who you were expecting to give some evidence just doesn’t, and that means there is no evidence about a necessary element of a charge (a trial for illegal importation I did a few years ago succeeded on a 347 application, after we pointed out at the end of the prosecution case that none of the prosecution witnesses had actually given any evidence that the material had come from overseas).

So, in this case, Dotcom’s claim that Banks specifically asked him to split his donation into two donations of $25,000 in order that he could declare them as anonymous will be accepted. And that gets you quite a way toward a finding that Banks knew about the donations, and knew they were falsely declared as anonymous.

At trial, a jury might listen to Dotcom, and decide they can’t be sure that that claim is accurate, and they might decide on that basis that there is reasonable doubt. But the test at this stage isn’t proof beyond reasonable doubt. The question is: is there evidence that a jury could accept that would be enough for a conviction beyond reasonable doubt? Whether any jury accepts that evidence is a matter for it. It may or may not. But if it did, would they convict? And if the answer is “yes”, then we go to trial to find out.

Why did the judge suggest this?

Mostly, to make sure that there isn’t any unnecessary delay. If Banks was just arguing a judicial review on Wednesday, the result might be: I’m not really going to look at this, because you have the option of bringing an application under section 347 of the Crimes Act, which is a better approach than a judicial review of a committal decision. And if that happened, Banks would probably then make an application under section 347 of the Crimes Act. By raising this now, both matters can be dealt with together (or at the very least, preparations can be under way for a 347 application shortly after).

How long will we have to wait?

I doubt it will be long. Judges make rulings on 347 applications on the spot all the time. I suspect we’ll get a reserved decision, if only so the judge can make sure to not make the types of errors Banks’ team says Judge Gittos made (Judge Gittos gave an oral decision). I would be very surprised if a decision wasn’t out before the Christmas break, and it will probably within a week or so.

And then what?

If Banks wins, it’s over.

If Banks loses, then, while he could appeal the judicial review, he probably wouldn’t. And as he couldn’t appeal any decision on a section 347 application (and he can’t judicially review it either, if it’s made by a High Court judge), there would be a High Court trial sometime next year.

You’ve mentioned a “jury” a few times, would it be a jury trial?

The default assumption in Banks’ case is that it will be a jury trial, but it’s essentially up to Banks. Banks would have to apply to have the trial heard before a judge without a jury, and he has given no indication that he intends to do that. The deadline for the easier type of application has already passed (if you apply within 28 days of committal, you use a different section of the Crimes Act, which is easier to meet). This does not appear to have happened. He can still apply, but the test is now slightly harder. However, the fact there was a judicial review, and it’s still months from any trial, would probably mean an application looked at now would still be looked upon favourably. But, again, he has given no indication that he wants a judge-alone trial.

If Banks goes to trial and is convicted, then what?

We’re a little ahead of ourselves, but a conviction on the offence Banks faces would mean he would lose his seat. This happens even if he appeals. Unless Banks is sentenced to prison (which won’t happen), he could run in an Epsom by-election (but probably wouldn’t). If a vacancy occurs less than six months from a general election, the House of Representatives can decide to forgo a by-election.

394

Think it possible that you may be mistaken

I don’t like advertiser boycotts; especially not boycotts of advertisers for the content of the programmes during which their advertising appears, and especially not if that programme is news or current affairs.

Yes, free speech has consequences. But the exercise of free speech in response also has consequences.

There are several aspects to this. I do not think that advertisers should exercise control – even indirectly – over content. For advertisers, the programming is the medium, not the message; a programme is a conduit to the audience of a broadcaster, not something they should generally been seen as supporting. Especially when we are dealing with news or current affairs, those advertising during a particular programme should not be seen as endorsing the views expressed in it. And I think that if people generally treat advertisers as bearing responsibility for editorial content, they are more likely to either want some control over it, or to spend their advertising dollars in a way that has that effect.

We have ad-supported broadcasting. While there might be a place for a real public broadcaster, most of the radio and television we have will continue to be ad-supported. I like that there is a variety of things to watch and to listen to (most of which I don’t). But if we really start holding advertisers to account for the content of programmes or channels on which their ads appear, then they will be more circumspect about placing ads, and some voices may be lost.

That is not to say that those calling for boycotts should be stopped. Their speech is just as worthy of protection as the speech they seek to shut down. I simply ask that they consider not only the consequences of the speech they are protesting, but also the consequences of the speech they engage in.

I may agree that the speech targeted in one boycott is ill-considered, or harmful in some way, but next time a boycott succeeds it might have the effect of reducing speech I like, or think is valuable. Targeting Freeview over something Willie Jackson and John Tamihere have said, or Heritage Hotels for something Paul Henry said over which they had no control (and shouldn't have control) in order to punish their broadcasters for airing them, isn't fundamentally different from arranging a boycott of Four (or Mediaworks) for airing an episode of South Park about the abuse by Catholic clergy, or someone else for airing pro-homosexual propaganda like Queer Nation or The L Word.

I think liberal non-racists outraged about Paul Henry should be able to call for a boycott of him, and all of TVNZ, and the advertisers who support TVNZ. I think conservative Christians should be able to call for a boycott of The L Word, and the channel it appeared on, and every advertiser who supports that channel. But I think if they do, despite that being an exercise of free speech, it will be bad for free speech.

Threats of advertiser and consumer boycotts force companies to be more conservative, leaving out voices. Those voices may still be able to get through, but sometimes, they won’t. And sometimes that will suck.

Sure, it might not happen following any particular boycott or campaign: it’s a risk, not a certainty. But it is not a fanciful risk.

We have had quite a number of successful (and partly successful) protests against speech some consider offensive over recent years. Paul Henry went from Breakfast, and Willie and JT have gone (for now, at least) from Radio Live. Of course, it’s not just radio and television broadcasts that are affected by angry consumers; after a campaign against Ian Wishart’s book Breaking Silence: The Kahui Case, which told Macsyna King’s story, a number of major book sellers, including Paper Plus, The Warehouse and Mighty Ape, announced they would not be selling it. TradeMe apparently banned its resale. Whitcoulls, to its eternal credit, announced that they preferred to read the book before denouncing it, and continues to sell it to this day, while the Booksellers’ Association put out a wonderful statement reminding everyone that no-one was trying to compel anyone to read it, and reinforcing the dangers of banning books because some don’t like them.

Other books too feel the wrath of an angry public. Earlier this year, a similar (if smaller) campaign against Ted Dawe’s award-winning young adult novel Into the River, saw it removed from some bookstores, and others put up warnings.

Of these recent examples, Paul Henry is an outlier, as he was just trying to be funny. But with Willie and JT, Breaking Silence and Into the River, we do not have people being shocking for no real reason. Rather, we have people who have said things that they consider important, others who agree that there is a need for their speech to be heard, and others who, equally honestly, consider it just as important that their ideas are silenced as much as possible.

The speech recently being denounced as “victim blaming” does not come from people who think they are victim blaming. Much of the advice they give they see as information that would help stop some women and girls from becoming victims of rape or sexual assault. Their opponents view their speech not only unhelpful in this regard, but dangerous, instead having the effect of reinforcing the views of some that there are people who are asking to be sexually assaulted, and discouraging the type of support that would make it easier for victims to seek help. And there are others who honestly believe that that message is dangerous, because they see it as falsely telling women and girls that there is no action that they can take to make themselves safer, which they view as increasing the likelihood that some people will be raped. They cannot all be right, but those who are wrong are misguided, not mal-intentioned. They have vastly contrasting views, but for the most part, they honestly believing that the expression of their views has a chance of decreasing the incidence of rape, while that of those they oppose, will tend to increase the numbers of victims.

This duality is often the case in calls for the silencing of certain viewpoints. With Ted Dawe’s Into the River, the debate is between those who fear the book will encourage young people to follow in the hero’s footsteps or expose them to material they will not be able to process, and those who think it will instead help. Author Bernard Beckett (who was one of the judges of the New Zealand Post Children’s Book Awards at which Into the River did so well) responded eloquently:

Finally, although you may not agree with my judgement, ours must not be portrayed as a disagreement between the moral and the apathetic. Those of us who believe in literature like this are as driven to make a better world for our children as those who oppose it. Nor is this even a disagreement about what stands as moral, for I too seek a place where the young may move with safety and joy, live in respect and tolerance, and form healthy, nourishing relationships. To the extent we do disagree, it is about the way this book will be read, and more broadly, the way that reading will influence world view and behaviour. These are difficult questions, to be approached with a cautious and open mind, and crucially, with careful study and evidence to support one’s case. Do that, and there is a chance we can move together towards the sort of world we all desire. Turn this into a tribal war, between the putatively decent and depraved, and everybody suffers.

The point Bernard makes about the potential for everyone to suffer when it is people – rather than ideas – that are attacked is an important one. Even adopting the perspective of someone who considers certain speech dangerous, there is still the risk that seeking to silence an opposing view will do more harm than good, and not just because of a potential “next” boycott.

Supporters of the boycott of Radio Live and its advertisers were hoping to silence the speech of those they see as placing blame on victims of rape – a view that they consider has the effect of emboldening those who victimise women, and which they believe discourages rape victims from seeking help, and attaining justice. They consider the view that victims of sexual assault could have chosen to wear different clothes to lessen their chance of being victimised as dangerous speech.

Of course, those views are still out there. The diminished reach of Willie and JT personally does not diminish the extent to which the views to which they gave voice are held within the wider community. So removing Willie and JT’s audience from them isn't going to attack their real concern – the prevalence of these views within the broader community.

How do we solve this? Well, it’s partly generational; as the more conservative older generation dies, some of the views they hold die with them. If you grew up in a society where these views weren't just accepted, but encouraged, and perhaps no one spoke against them for a very long time, it is probably naïve to expect wholesale change.

But for someone who views this speech as dangerous, a generational change isn't fast enough, so they need to change some minds. Some people will be incorrigible. Others just haven’t heard that single argument that will convert them. Most will be somewhere between.

But the numbers who will accept the error of their ways because Willie and JT are no longer on Radio Live between noon and 3:00 pm on weekdays are vanishingly small. You are going to need to persuade people, and accusing them of “victim blaming” or being “rape apologists” isn't going to do it. But you know there are some reasonable people out there, whose minds can be changed, and society changed along with them.

What if – after listening to the original interview, and to the apology – you decided that the hosts were a lost cause, but you didn't think their audience was, and certainly didn't think everyone in their audience was, and you formed the view that there was a chance you might successfully expose some of them to alternative views: to get at least some of them to think about the damage that can happen when a victim’s choices are scrutinised, and a perpetrators are minimised.

Willie and JT’s audience has heard an interview full of crass behaviour that you consider damaging, but few of them are reading twitter, or blogs. And they’re not going to look for an alternative view themselves.

In reaching these people, the campaign against Radio Live, against their advertisers, and against Willie and JT, did not help.

The continued campaign against Willie and JT did not to stop them blaming victims of rape. In fact, they’d already stopped. In the days after the interview with Amy was posted on-line, and the apology that followed, but before Willie and JT were placed on leave, it was completely off the agenda. But it wasn't only “victim blaming” that was banned at Radio Live. After Matthew Hooton’s (dis)appearance, Radio Live didn't simply ban their show from airing content critical of victims of sexual assault, but all discussion of the Roast Busters, and of rape culture. Discussion of Willie and JT and their behaviour was off the agenda as well. Because that is what happens when, even for a broadcaster that somewhat courts controversy, something becomes simply too controversial; however great the public interest in these issues was, it wasn't worth the risk of further brand damage, and they were going to play it safe.

Where does a progressive, or feminist view of rape culture have an audience in the commercial media the size Willie and JT had on Radio Live? Well, Amy had that audience for ~10 glorious minutes, where she gave better than she got. But anyone who wanted to support her to that same audience a few days later couldn't. Not because the producers of Willie and JT’s show don’t want to give voice to people who disagree with Willie or JT, but because Radio Live had been cowed into silence.

I’m confident there were many of them. I saw enough comments of people who couldn't get through, or who were cut off from the talk back audience when they started discussing Willie and JT’s interview, or attitudes toward victims of sexual assault, to imagine that Radio Live’s regular afternoon audience were missing out on hearing a lot of perspectives they don’t usually hear. These were people trying to take their stories, and the stories of friends and loved ones affected by rape culture to an audience that doesn't often hear their voices, to an audience in the one of the places where these seldom-heard views might do the most good.

But they, too, were silenced, because Radio Live banned not just the speech their critics consider wrong, but also banned speech they would consider helpful. How many minds could have been changed if the response to Willie and JT was not to contact their advertisers, but to contact their switchboards, and flood the airwaves with the views of those appalled at their treatment of Amy? We’ll never know, but I’m guessing it would have been more than were changed by their silencing.

There isn't going to be less speech because Willie and JT are off the air – someone will fill the airtime – but it is at least possible (if not likely), that the speech that remains will be more homogeneous. And if that isn't the case once Radio Live’s early afternoon slot is filled, then the next ‘success’ or the one after that may. It certainly seems exceedingly unlikely that any boycott of this case will have the effect of increasing the range of voices on our airwaves.

The campaign to get Willie and JT off the air, and advertisers boycotts, and boycotts more generally, like the public pressure that led to major booksellers not stocking Breaking Silence, and others to cease selling Into the River, fall into a group of expression that that is aimed not at counteracting the ideas expressed by an individual, but at seeking to limit their opportunity or desire to speak in the future. And this, beyond my concern about greater advertiser influence over our airwaves, and more conservative broadcasters generally, is what I find most concerning.

As a matter of principle, I do not see that placing pressure on advertisers to, in effect, rein in an errant broadcaster is fundamentally different from other pressure placed on an individual to simply not speak. Both are exercises of freedom of expression, and both are aimed at people, not ideas.

Many women in public life – whether politicians, or business or union leaders, or public spokespeople for important (or not so important) causes – face heightened scrutiny. Photo-shopping the head of a female politician onto the body of adult film star is an exercise of free speech, as is publicly commenting upon which people you consider are ugly, and who you would like to “do”. But it is speech that risks discouraging other ideas from being expressed. Unless you are lucky(?), one photo probably won’t have that effect, but the repeated hostility toward women in public view undoubtedly discourages other women from standing for office, or speaking out.

Now, some people engaging in such speech will consider that a particular female politician is dangerous, and is pursuing policies detrimental to society at large. They may be saying things they find offensive, and it is possible that by reacting to that speech in a way calculated (or potentially having the effect) of discouraging them from speaking will cause their ideas to spread less widely. In the same way that a boycott removing Willie and JT will stop them spreading their ideas widely, derogatory remarks about someone like Sarah Palin, or Pauline Hanson, or Helen Clark, may affect their ability to disperse their ideas – they may be taken less seriously, and others may be more reluctant to come forward at all.

Consumer boycotts such as those I've discussed above, and misogynistic comments about female public figures have the same ultimate aim: to silence people, or to ensure that the audience for their expression is as small as possible. There are other examples: like loud protests designed to drown out the voice of a controversial speaker invited to a university campus, or the outing of an anonymous author of a blog. And it would be great if they happened far less as well.

Of course, they are themselves an exercise of freedom of speech, even if it is speech that detracts from the marketplace of ideas. I am not proposing that advertiser boycotts should be prohibited. Nor do I think advertisers should be forced to support programming that they do not want to. Nor that bookstores should be forces to stock particular books. And banning personal criticism of politicians, whatever their stripe, and however distasteful, isn't a goer for me either.

But I would like those who engage in this sort of speech to take more care.

If you were considering boycotting Whitcoulls over its decision to stock “Breaking Silence”, it would be great if you could weigh into your decision the effect it might have on overall free speech, and the possibility you may in the future not be able to readily buy books they might want (or even that fewer people will read books you think should be read widely if they aren't readily available).

I would welcome your considering the extent to which you are actually harmed by a decision by Whitcoulls to stock the book, and weigh that against the potential harm you, others and free speech overall could face, when reaching a decision over whether to enter into a boycott. In some cases you may consider the harm so great, and the risks low enough that a boycott is justified, but other times you will not. It is likely I will disagree with you most of them time, but I cannot expect my views to hold sway in a democratic society.

In the case of a broadcaster, or a bookstore, as well as there being other broadcasters you agree with, or books that you like which may face a boycott (if one succeeds, it seems likely that more will try), there is also the concern is that some bookstores may simply become more conservative out of fear of bad publicity. It is probably less likely to happen in New Zealand than elsewhere, but it was not all that long ago that books about any number of progressive issues would have been highly controversial.

In the United States, some major movie theatre chains just won’t air films which receive an R rating from the MPAA (and some department stores won’t stock the DVDs). In some cases (“The King’s Speech” is a good example) film-makers release PG-13 edits of their films for the American market. Sometimes they do not. It’s not that the theatres would have faced a boycott if they’d aired the R-rated version of “The King’s Speech”, they probably wouldn't. But it didn't even get that far.

These boycotts follow from consumer action, but have the effect of basically stopping some people (e.g. in towns where the only cinema or cinemas are part of those chains) from seeing certain films. Of course, if they really want to, they can get the film out on DVD or whatever, but people who think “we should see a movie.” “What’s on?” “The King’s Speech.” “I heard that was good” will just miss out.

Should movie theatres be forced to show R-rated films they really don’t want to show? Of course not. But wouldn't it be better if the fear of consumer protests didn't cause them to make a blanket decision without consideration for the merits of a particular film?

Please don’t protest in a way designed to diminish the free speech of others, or at least be very careful before you do; as one day you may wish to rely on that free speech. Consider the golden rule: would I support these actions, if someone was doing them to me? Or am I wanting to silence someone simply because I do not like what they want to say?

If we move to ban speech because of the harm some people consider it poses, ask yourself, whose perception of harm will we use? Some people really think that telling women and girls that their choices cannot decrease their chances of being raped is dangerous. What if they convince enough people that your ideas are harmful?

In words of Oliver Cromwell’s that I discovered through Jacob Bronowski: think it possible that you may be mistaken. And if that is a step too far, consider that the actions you take may actually harm your cause. Or you may find your campaign not only silences those who have said something you vehemently disagree with, but also those who are fighting your cause – like those who wanted engage Willie and JT’s audience over the effects of rape culture, and couldn't, because of the pressure Radio Live was put under.

And if I am loudly saying things you disagree with, ask yourself whether it would be better if you silenced me, or if you changed my mind.