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.
In his essay There’s No Such Thing As Free Speech, And It’s A Good Thing, Too Fish says that “in the rhetoric of American life, the label ‘free speech’ is the label you want your favourites to wear”. In other words, it is a political prize. And, if we look at the context of the forthcoming execution, we can see politics written all over it.
First, former United States Army major Nidal Hasan said during his trial that he had switched sides in a “war on Islam”, and a Senate report described his killing of 13 people and wounding of a further 32 as “the worst terrorist attack on US soil since September 11, 2001”. Second, this ‘Islamic terrorist’ is being put to death while the United States is waging a war against the Islamic Republic of Iran. Televising the execution is a macabre piece of political theatre.
Not only is the livestreaming without merit, but it also has the potential to cause harm even beyond the inevitable anti-Islamic ranting that will surround it. The livestream will show an act of extreme violence, in which a life is forfeit, that is officially sanctioned and which you have been invited to witness.
What message does that send to impressionable young people already exposed to fictionalised extreme violence and to those who lack the critical faculties to see the act in its correct context? It legitimises brutality.
Section 3(2) of the Films, Videos, and Publications Classifications Act, bans content that presents extreme violence as acceptable or justified. However, I acknowledge, as David Harvey correctly points out, that under that statute the material must already exist for the ban to be applied.
I may have a general aversion to prior restraint, but I do not see that as an absolute. In this case in particular I believe there are reasonable grounds for seeking an injunction — against downloading — before the sentence is carried out on grounds of potential public harm.
We are not dealing with an unknown: This is not a matter of asking a court to rule on something that it cannot foresee. I have just watched a freely available video of the execution of a German spy by a US Army firing Squad in Bavaria in 1945. It showed the moment the bullets impacted his body. I have no doubt the scene when Hasan is executed will show similar results.
The difference will be that the livestream of Hasan’s execution will be happening as people watch, not eight decades ago. And the publicity already surrounding the livestream will guarantee large numbers will be attracted by the vicarious ‘thrill’ of seeing someone die in real-time – whether they are prepared to admit that or not.
It has been a while since New Zealand put itself at the forefront by being the first to do the right thing. An injunction would not stop those determined to watch the execution somewhere on the Internet, but it would send a clear message – as did the ban on the Christchurch mosque attacks video – that this country views public killing with the abhorrence it deserves.
I took another bite of my breakfast muffin and opened the Sunday Star Times.
In it I found a story about lawyer Dr Shannon Eldridge, whose recent PhD thesis was devoted to the subject of name suppression. While David Harvey’s column advocated openness, Eldridge called for the opposite – automatic name suppression for criminal defendants and people connected to criminal proceedings, except when an absconding defendant needed to be identified.
According to the story, that was Eldridge’s solution to “troubling inconsistencies” in the current system. Māori and female defendants were potentially disadvantaged compared with European, male and corporate defendants who, he said, receive suppression at higher rates. My own observation has been that the ability to pay for the best lawyers also increases your chances of staying below the radar.
Eldridge claims his system would preserve the principle of open justice because proceedings and decisions would still be published. There is no need, he says, to identify individuals. I disagree.
There are two principal reasons our courts are open to the public and their proceedings reported by the news media. The first is that the public may witness that justice is being properly administered, but the second is so that the public may, for its own (present or future) protection, know who is being brought before the criminal court. There is an ancillary factor in the naming of defendants and that is the deterrent effect of being ‘named and shamed’.
As with free speech, open justice is not an absolute. Parliament has passed a number of statutes restricting publicity, including provisions for automatic or discretionary name suppression.
Burrows & Cheer Media Law in New Zealand lists a number of grounds on which a judge may grant discretionary name suppression:
- Extreme hardship to the defendant or those connected to the defendant
- Casting suspicion on another person that may cause undue hardship
- Undue hardship to any victim of the offence
- Real risk of prejudice to a fair trial
- Endanger the safety of any person
- Identification of another person whose name is suppressed
- Prejudice to the maintenance of the law
In my book, those grounds are more than adequate. I say more than adequate because I believe that the first ground – extreme hardship to the defendant or those connected to the defendant – is too open to an interpretation that favours wealth, position and the eloquence of senior counsel, particularly when seeking interim suppression during a case. The solution, however, does not lie in suppressing everyone’s name but in making it harder for public figures and the privileged to meet the threshold.
Which brings me back to my friend David Harvey. In July he wrote a column in the New Zealand Herald that was an excellent summary of the ‘direction of travel’ that name suppression has taken over the years. He noted that Parliament had tightened that first ground from ‘undue hardship’ to ‘extreme hardship’ but he acknowledged that a problem remained with interim suppression.
“What is true,” he said, “is that the regime’s operation generates the appearance of favouritism: Interim orders clustering around high-profile cases, occasionally suppressed reasons, and protection that tracks wealth. Reform energy belongs there — shorter, rigorously reviewed interim orders, a presumption of openness as to reasons, and resourcing so protection does not depend on means — not on lowering an already high bar. The remaining task is to make the law’s operation match its design, so that rare and justified suppression is not mistaken for a privilege of the powerful.”
I may disagree with Dr Harvey on livestreaming executions but I agree wholeheartedly with the views on name suppression he expressed in his Herald column. The solution lies in judicious use of the present system, not blanket name suppression.
And the breakfast muffin was delicious.
UPDATE: On Friday Oct 16, President Trump ordered that the execution should not be live-streamed. Scheduled for Dec 3, it will be witnessed by the victims’ families. Hasan has been confined to a wheelchair since the shooting, having been wounded in the resulting exchange of fire.