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Why Defamatory Speech is not Free Speech

May 27th, 2012 by Madeleine

The following argument as to why a remedy requiring the removal of defamatory speech from a publication was not a violation of the right to free speech is representative of one I have previously put before the court:

  1. The right to Freedom of Expression is protected by s14 of the Bill of Rights Act 1990 (“BORA”).
  2. The operational provisions of the BORA provide in section 5 that a reasonable limit to Freedom of Expression can be justified in a free and democratic society where that limit is prescribed by law.
  3. Section 5 is subject to section 4, which states in mandatory terms that no court can decline to apply any provision of an enactment on the sole grounds that the provision is inconsistent with the BORA.
  4. Notwithstanding this, section 6 requires the court rule in a manner as consistent as possible with Bill of Rights.
  5. It is submitted that the Respondent’s actions constitute a breach of s4 of the Defamation Act 1992 therefore the remedy sought, removal of the defamatory material from the publication, does not violate the Respondent’s right to Freedom of Expression.

Freedom of SpeechWhile this is the standard argument it feels wrong to me. There is something unsatisfactory about appealing to a mechanism in the law that, as argued, feels like it is shearing off a part of an important right and freedom, even if the law says that it is ok.

I find this argument unsettling and lacking something; at the same time defamatory speech is insidious, causes harm, hurts; intuitively it just feels wrong to say that one is morally justified in spreading harmful falsehoods about a person and is not required to account for the wrongs done, because of their right to free speech.

After discussions with Matt about this I have decided that I prefer the following argument:

  1. Freedom of Expression is defined in the BORA as “the freedom to … impart information and opinions …”.
  2. Defamation is expression imparted to another that lowers the standing of a person in the eyes of their peers and is not true and is not honest opinion which is genuinely held.(I am ignoring the third defence, privilege).
  3. A person who expresses defamation is not engaging in Freedom of Expression as where there is no truth or honest opinion then a person is neither attempting to inform another or attempting to express their opinion.
  4. The basis for this is that to attempt to inform someone is to attempt to increase that person’s repertoire of true beliefs’ and to impart an opinion is to express what one honestly believes to be the case.
  5. Therefore the speech the BORA protects is all speech that is true or honestly held to be true by the speaker.

That is much better.

Defamatory speech is not free speech therefore legal sanctions against it proportionate to the harm caused are entirely appropriate in both legal and moral senses.

Pluralism and Being Right
Of course I think I’m right!

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10 responses so far ↓

  • Defamatory speech is not free speech therefore legal sanctions against it proportionate to the harm caused are entirely appropriate in both legal and moral senses.

    What is your biblical apologia for this position? To put the question another way, what is your biblical basis for making defamation a criminal (as differentiated from “immoral”) act?

  • That is a good question CL.

    I’d like to know the answer to this question too.

  • I don’t have time for a detailed answer at the moment, but here is a suggested starting point from Deut 22:13-18:

    13 If a man takes a wife and, after sleeping with her , dislikes her 14 and slanders her and gives her a bad name, saying, “I married this woman, but when I approached her, I did not find proof of her virginity,” 15 then the young woman’s father and mother shall bring to the town elders at the gate proof that she was a virgin. 16 Her father will say to the elders, “I gave my daughter in marriage to this man, but he dislikes her. 17 Now he has slandered her and said, ‘I did not find your daughter to be a virgin.’ But here is the proof of my daughter’s virginity.” Then her parents shall display the cloth before the elders of the town, 18 and the elders shall take the man and punish him. 19 They shall fine him a hundred shekels of silver and give them to the young woman’s father, because this man has given an Israelite virgin a bad name. She shall continue to be his wife; he must not divorce her as long as he lives.

  • Defamation is no longer criminal in New Zealand, it is civil; I was not advancing a case for it to be restored as a criminal offence.

    But in defence of it being an immoral act the law prescribes a penalty for my biblical apologia would be as follows:

    General principles of truth, justice, fairness stem from God and we are called to stand for them.

    The law and the state’s power to make and enforce it is God given; we are called to obey it, and we told to turn to it when we are in need of justice instead of taking matters into our own hands.

    Matt rightly points out that there are examples as to where serious harm to reputation is penalised by law and that is deemed right and just in the Bible.

  • Ephesians 4:29
    Do not let any unwholesome talk come out of your mouths, but only what is helpful for building others up according to their needs, that it may benefit those who listen.

    Seems to cover it pretty well.

  • The law and the state’s power to make and enforce it is God given
    The only biblically justifiable (not essential) functions of government are rewarding good and punishing evil (1 Peter 2:13-17). Clearly the states are operating far beyond their mandate. A tree is known by its fruit, and from the account of Joseph onwards we see that the fruit of the state is death and other forms of evil (the link below is related to this).

    we are called to obey it
    This is a conditional imperative, as shown by the Hebrew midwives, Daniel, Hananiah, Mishael, Azariah, et al.

    Deut 22 does seem to support defamation as a civil action. A literal version of v14 would include “causes an evil name to go out against her”, and v19 would be the same with a different tense. However, Deut 22 does set a high threshold in terms of actionable harm; the woman would likely be a pauper for life and a pariah in a way incomprehensible to most modern Westerners (perhaps a paedophile in prison would be the nearest modern equivalent).

    Matt, this might interest you:

  • That is not the definition of “freedom of expression” in the New Zealand Bill of Rights Act. Freedom of expression is not defined in that law. The words you have elided from your definition include the word “includes”. Freedom of expression includes the freedom to … impart information and opinions …

    Freedom of expression extends to all expression, not just information and opinions.

  • Graham, you may well be right in terms of the meaning of the words in the act.

    I am inclined to make a couple of points here, and this may reflect my philosophy background.

    First, taken as referring to all forms of expression, the claim we have freedom of expression is, I think, absurd. If we did, then it would include perjury, standing outside my house at 3 am with a megaphone yelling into it, playing heavy metal at 600 decibels and so on. Now I am aware the act goes on to proscribe limits that are reasonable in a free and just society, and spell out that the law does not override existing statute but that leads me to ask, on what basis we make these restrictions?

    The leads me to my second point. One way to answer this is to ask why we have freedom of expression? What is it about expression which requires that we protect it. The standard case in the literature is (Mill, Milton etc) that it is necessary for the robust exchange of opinions and ideas to occur. It is necessary for people to be able to hear a diversity of opinions on a given topic so that they can make informed decisions; it is necessary for public policy to be subject to debate and critique an so on.

    But if this is the case then it limits what justifiably counts as freedom of expression. it is the freedom to impart information and opinions. This also helps explain some of the limitations on it. Restricting me from screaming at 3 am in the morning does not prevent me from expressing my opinion. Screaming often is not asserting a proposition at all, and the fact I am restricted from asserting it at 3am at 100 db does not mean I cannot assert it a 1 pm at a reasonable level.

    The prohibition is on the medium. Similarly prohibitions on child pornography do not restrict the expression of opinions whereas restricting articles that defend child porn does. Perjury does not express opinion, but censorship of a political tract would, and so on. In each case we have justified the restriction because the reasons that justify freedom of expression do not apply in the particular case.

  • I’m pretty sure I didn’t make a claim that “we have total freedom of expression” 🙂

  • Graeme, sure, but the statement “Freedom of expression extends to all expression, not just information and opinions.” tends to suggest that we have a prima facie liberty right to engage in all forms of expression. 🙂