FREEDOM OF SPEECH

Evening Star, Issue 23526, 15 March 1940, Page 6

FREEDOM OF SPEECH

LEGAL DEFINITIONS OF ITS LIMITATIONS LIBERTY WITHIN LAW “ There is no such thing as absolute liberty of any kind; a man’s right to liberty is limited by the duties he owes to the State and to his fellow men,” states the ‘ New Zealand Law Journal ’ in an editorial article in its latest issue on ‘ Freedom of Speech and Its Limitation, ’ ‘ Thus, referring to free speech, Story in his great work on thp Constitution of the United States, says that ‘ reasonably limited ’■ freedom of speech is an inestimable privilege in a free government: hut ‘ without such limitation, it might become the scourge of the republic,’ Consequently, liberty of every kind, is, in practical terns, freedom within the law.” In the course of_ the article, which is a lengthy one it is stated; — “ This fundamental fact in our own constitutional law is called to mind by the appearance of the Public Safety Emergency Regulations 1940, by which the Executive, in pursuance of the powers conferred by Parliament in the Emergency Regulations Act, 1939, have provided! a further safeguard against the disturbance by a small but noisy minority—who have appealed to the ‘ right ’ of free speech—of the effective prosecution of the war by New Zealanders generally. “ These regulations are directed against those misguided persons, who, from a sense of their own superiority of view or because of a false sentiment of attachment to confused conceptions and consequent misuse, of the term ‘democracy,’ desire to keep New Zealand out of the war; and, by means that are detrimental to public order, endeavour to discourage recruiting and generally to impede the war effort on which New Zealand has earned high commendation in all parts of the British Commonwealth.

“In olden days at moments of supreme necessity, the Romans, a people who reverenced law, handed over control to a dictator, as we were reminded in a judgment of the late Mr Justice Denniston during the war of 1914-18. His Honour then stated': ‘As a last extremity recourse is had to martial law, which is really the negation of law.* Short of these (dictatorship or martial law) and to prevent recourse to these, there is recourse to special war legislation which may involve the inversion of the ordinary rights of citizenship. Under these, in Britain, powers hitherto undreamt of have been bestowed upon and exercised by the Executive, and • cheerfully accepted' and obeyed. The Administration there and here has become a machine devoted to the task of meeting a deadly national peril. Those of us who cannot see their way to assist its working can at least , refrain from applying sabotage to its machinery.’ _ “ From the very nature of the social contract on which the laws and the public order of a country are founded, every man, when he becomes a citizen, of a State, gives up part of his natural freedom; as he thereby becomes subject to laws which, in certain cases, authorise the infliction of penalties, and even the destruction of life, with a view to putting down crime • and to ensuring . the welfare of the public generally. '-. . . NO SPECIFIC RECOGNITION. “But, in English law, there is no specific recognition of the right of free speech as a privilege of the subject.; In our law, the existence of freedom of speech and liberty of the Press, where it exists, and its limitations, depend upon deductions from the principles and rules of the common law, which is characterised by the two complementary ideas of liberty and responsibility to the law. “ Professor Dicey, in his ‘ Law of the Constitution,* says: ‘ As every lawyer knows, the phrases “ freedom of discussion ” or “ liberty of the Press ” are rarely found in any part of the Statute Book nor among the maxims of the common law. As terms of art they are indeed cpiite unknown to our courts. At no time has there in England been any proclamation of the right to liberty of thought or to freedom of speech.’ “ These rights were left to their development by the machinery, and in accordance with the principles of the common law; and, because of this, they are stated, riot as abstract rights of the subject, but, like other commonlaw rights, as deductions from the principles and rules, substantive and adjective, of the common law. Their exact content, as Professor Holdsworth indicates in ,his ‘History of English Law,’ was developed as other commonlaw rights were developed, by decided cases. Thus,' as Dicey says, tho_ right of public meeting or assembly is nothing more than a result of the view taken by the courts as to individual liberty of person and individual liberty of speech. . “ The law does not give or guarantee a right of public meeting or a right of freedom of speech; and the law relating to each has developed with similar characteristics. It _ does not forbid either, but its permission is' limited when the exericse of the right can, in the circumstances, he shown to infringe some provision of the criminal law, of the law_ of tort, of a statute, or of a regulation having the force of a statute.” RESTRAINT OF PEACE INTEREST.

After quoting decisions of English and United States judges of the Supreme Courts on.. the free speech issue, the article concludes;— “ In the English common law, therefore, in general terms, the limitations or restrictions on • the right of free speech or the right of public meeting arise from the paramount necessity for the preservation of the King’s peace. As Dicey says, they are in reality nothing else than restraints, which, for the sake of preserving the peace, are imposed on the ordinary freedom of individuals. . . . “ While we could quote many more expressions of the principles of the common law, enough has been shown, in illustration, to indicate that the common law of England, as it has developed in Great Britain and also in the United States, considers ‘ freedom of speech ’ a relative term, not as postulating an absolute right. Liberty of expression is conditioned to the circumstances in which words are written or spoken, and limited hy the duties owed to the State and to its citizens. An individual is, therefore, restricted in his freedom to say. what he likes in order to ensure that there is no infringement of the rights of the State or of his fellowmen. “ While everyone admits that freedom of speech is one of the cornerstones of the liberty of which all British subjects are proud, limits are set by the law in times of peace as well as in times of war. For the law is careful, in the interest of public welfare, not to suffer liberty to degenerate into license, or anarchy to take the place of order. And this follows from the fact that civil liberty is natural liberty, so far restricted by law as is expedient or necessary for the good of the community as a whole.”