It is disconcerting, in the course of eating a single breakfast muffin, to be confronted by polar opposites to the concept of open justice.
I begin my day with a quick survey of my emails, and I was alerted to a Substack commentary by David Harvey. I number the retired judge among my friends so, after a quick bite, I read his Halfling column.
It was devoted to executions and, in particular, to the forthcoming death by firing squad of Nidal Hasan, who murdered 13 people at a military base in Texas. Last week, the US Secretary of Defense Pete Hegseth announced the killing would be livestreamed on a public platform.
I was among the many who publicly expressed their outrage at the decision, which is fully endorsed by President Trump. I said on Facebook:
How, in the name of common decency, can the people of the United States continue to allow their once great country to continue its spiral into primitive savagery? I am disgusted beyond belief. New Zealand must treat the video in exactly the same way as it handled the terrorist’s video stream from the Christchurch mosque attacks. Viewing and retaining the material in this country should be deemed illegal.
David Harvey is a learned man, and he argued convincingly in his column that there was nothing in New Zealand law to prevent the execution being viewed live in this country because we lack a statute censoring something that does not yet exist. I do not doubt he is right: The New Zealand censor’s ban on the mosque attack footage was after it had been livestreamed. He went on to argue against the use of prior restraint, on the grounds that “it strikes at the heart of freedom of expression”.
I, too, have an aversion to the use of injunctions and as an editor spent a number of Friday nights fearing a call that might prevent publication of a lead story in the Weekend Herald (the call never came).
I won’t put words in David Harvey’s mouth, but I think it is fair to say that he subscribes to the C. Edwin Baker school of thinking on free-speech absolutism. Baker, an American First Amendment scholar who died in 2009, asserted that the responsibility for harmful speech lay not with the speaker but with the reactions of the recipients. In other words, we must take responsibility for our own actions after we (not the state, or the justice system) choose to receive information. The Halfling column made the point that people could choose not to view the livestreamed execution, and David Harvey would be among those who opted not be watching it.
There is much in Baker’s writing with which I agree, and I have four of his books on my bookshelf. However, on this point I disagree with him and with David Harvey. One of the nice things about friendship is that it is possible to disagree and remain friends.
I subscribe to a school of thought articulated by legal scholars such as Stanley Fish and Jeremy Waldron. Their concern is about the undermining of public good and the assurances that society will protect its most vulnerable. This extends, they say, to harmful communication (which includes images). They maintain that free speech is only one of a number of values that need to be balanced against each other within boundaries set by society. Continue reading “Open and shut cases: Execution and name suppression”
