Dialogue: Why gay video ban was unjustified

By GRANT HUSCROFT*

The urge to censor is strong indeed, and quite understandable. As American Supreme Court Justice Oliver Wendell Holmes once observed: "If you have no doubt of your premises or your power and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition."

This is perhaps the best explanation for the decision of the Film and Literature Board of Review, which purported to ban two videos that a church group wanted to show its members.

The American videos, Aids: What You Haven't Been Told and Gay Rights/Special Rights: Inside the Homosexual Agenda, were banned by the board following a request by the Human Rights Action Group.

Among other things, according to the board, the videos wrongly linked homosexual orientation with the spread of HIV; represented homosexuals, bisexuals, and people with HIV as inherently inferior; and misrepresented the effect of prohibiting discrimination on the basis of sexual orientation.

In sum, the board considered that the videos were injurious to the public good. Clearly, the board hated these videos and the opinions they expressed.

Last week, however, five justices of the Court of Appeal unanimously quashed the board's decision and remitted the matter to the board for reconsideration. The result of that reconsideration is inevitable: the videos cannot be banned.

Indeed, so obvious is this outcome that one member of the court, Justice Thomas, held that there was no point allowing the board to reconsider its decision; it could not possibly ban the videos in accordance with the law.

The surprising thing is that these videos were ever banned in the first place. The first video, made in 1989, discusses the spread of Aids and includes interviews with a congressman and a number of healthcare professionals. It criticises homosexual conduct in relation to the Aids crisis, and argues that there is no such thing as safe sex.

The second video, made in 1993, expresses the view that American law should not be amended to ban discrimination on the basis of sexual orientation. That is a matter of political interest in the United States, and the video includes interviews with a US senator and a former Attorney-General.

To be sure, the opinions expressed in the videos are controversial. Some are offensive, especially to the gay community. But neither the controversial nature of an opinion nor its offensiveness justifies censorship, let alone an order banning a video.

The Films, Videos, and Publications Classification Act, 1993, allows censorship only of videos that deal with matters such as sex, horror, crime, cruelty or violence in such a manner as to be injurious to the public good. The act is, in general, concerned with preventing the publication of harmful activities. There is no power to censor or ban videos based on disapproval of the opinions they express.

Even assuming that the board had the power to ban these videos, it would have been required to exercise that power in the light of the right to freedom of expression in the Bill of Rights Act, and it failed to do so. The board thought that freedom of expression was subordinated to its goal of eliminating discrimination, and used its powers in an attempt to prevent people from forming opinions and attitudes it considered wrong.

In doing so, the board made a major case out of two dated and insignificant videos. It distorted the content of the videos, attributing misinformation to the videos that did not exist, while invoking its expert judgment to criticise opinions expressed in the videos as inaccurate factual information.

The board's decision left the impression that the videos were akin to Nazi propaganda. Unfortunately, that impression has been picked up by some in the media and it has been suggested that in overturning the board's decision the Court of Appeal has protected "hate propaganda."

For those who have seen the videos, rather than relied upon the board's description of them, the truth is far less sinister. The videos express religion-based opposition to gay rights in the US, a view that is mainstream in that country. At the same time, however, Christians are encouraged to love homosexuals as people.

As Justice Thomas noted, while he did not condone the contents of the videos or endorse the view that their publication was in the public good, neither did he accept that they were blatant bigotry or hate propaganda. In any event, most New Zealanders are likely to disagree with the some or all of the opinions expressed in the videos. But the board was not willing to leave that to chance, and as a result banned their exhibition in this country.

Incredibly, the Attorney-General and the Human Rights Commission officials who are supposed to be concerned with protecting rights intervened in the case in an attempt to support the ban.

As for the gay community, its support for the ban is short-sighted. Minority groups have everything to fear from censorship and almost nothing to gain.

The political successes enjoyed by the gay community in decriminalisation of homosexual conduct and the establishment of protection from discrimination in the Human Rights Act could not have occurred without the freedom to express opinions that were controversial, and remain controversial for some.

Tolerance is required if we are to be a free society, and it is a tall order. Gays must tolerate opposition to gay rights, just as Christians must tolerate demands for gay rights. It is as simple as that.The last thing anyone needs is censorship of this sort.

* Grant Huscroft is a senior lecturer in the faculty of law at the University of Auckland.