Tim McBride: Freedom of expression a right we must protect

International human rights lawyer Robert Amsterdam speaks at The Moment of truth event. Photo / Brett Phibbs

The right to freedom of expression is one of our fundamental rights. That is its status in core UN human rights documents to which New Zealand is a party - the Universal Declaration of Human Rights 1948 (Article 19), and the International Covenant on Civil and Political Rights 1966 (Article 19). The latter imposes binding obligations.

In both the Declaration and the Covenant the fundamental human right to freedom of expression has two key components. These are the right to seek relevant information and a right to impart information and ideas of any kind through any form of media.

The right to freedom of expression is also a right from which other rights may flow. Without it, other fundamental human rights, for example, the right to freedom of association and the right to peaceful assembly, may not be able to be exercised effectively.

Thoughtful Kiwis need no convincing of the value of freedom of expression, but how widely shared is that view?

Despite its legal recognition in our Bill of Rights Act of 1990, how well is the value of freedom of expression nurtured and protected in our society? Is it really recognised and practised in our private lives, our schools, workplaces or even in our tertiary educational institutions?

What value do members of the many cultures that make up the multicultural society of New Zealand place on the right to freedom of expression?

Adapting to our society with its increasingly "abrasive" freedom of expression culture cannot be easy. In this regard, what assistance are new migrants given for gaining an understanding of the importance attached to freedom of expression in our society?

If asked, what rationale would you give for asserting its importance in our rapidly evolving society?

I have long been attracted to the idea that it is essential for the discovery of truth and the exposure of falsehood, to crudely paraphrase the great English poet John Milton's noble sentiments.

Milton was confident that in a "free and open encounter", "truth" would prevail. Some people may have less confidence these days, given the increasing controls governments around the world are placing on the news media; and the ever-greater ownership, and increasing control, of major segments of the news media in ever-fewer hands.

In recent years there have been numerous instances of high-profile people, so-called celebrities, causing offence to some by their public utterances. While some of the views expressed struck a chord with me; others I found unpleasant, distasteful, offensive.

However, when I was tempted to join, privately at least, in a chorus of condemnation I reminded myself what freedom of expression is really all about.

As George Orwell once said, "Freedom is the right to tell people what they don't want to hear." More recently, Noam Chomsky reminded us that "if we don't believe in freedom of expression for people we despise, we don't believe in it at all".

He was echoing the oft-quoted words attributed to the legendary French thinker Voltaire: "I disapprove of what you say, but I will defend to the death your right to say it."

Freedom of expression purists would say there should be no limitations on its exercise. That's not the case in the US, despite its cherished First Amendment. Nor is it the case here.

One of our leading media lawyers has said, "Believing in the value of freedom of expression is the easy part; the more challenging inquiry is determining just what the justifiable limitations on its exercise should be."

In this country there are many legal limitations on the exercise of freedom of expression in both criminal and civillaw.

New limitations on its exercise in particular situations keep appearing. Invariably, they come complete with some justification "in the public interest".

Each time this happens, what remains of the fundamental right to freedom of expression is further eroded. Given this, any new limitation should require a persuasive justification, and its passage into law be preceded by an informed public debate.

Tim McBride is an Auckland human rights author and commentator.